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Published online by Cambridge University Press: 28 August 2007
The Clergy Discipline Measure 2003 lays down the procedures for bringing complaints against the clergy. These procedures can only be commenced in relation to specified acts or omissions and the article explores the difficulties that arise in relation thereto. It not only considers the case when a complaint is one involving doctrine, ritual or ceremonial, but also the overlap between the laws ecclesiastical; neglect or inefficiency in the performance of the duties of a cleric's office; and conduct unbecoming to the office and work of a clerk in holy orders.
1 Ecclesiastes Chapter 1 verse 9.
2 Coleman-Norton, PR, Roman State and Christian Church (London, 1966) vol 1, p 326Google Scholar.
3 Clergy Discipline Measure 2003, s 7.
4 See generally Iles, A, ‘The Clergy Discipline Measure 2003: a canter through its provisions and procedures’ (2007) 9 Ecc LJ 17–20Google Scholar.
5 Clergy Discipline Rules 2005, SI 2005/2022, r 29(2).
6 Presumably, however, the tribunal might order the designated officer to give any necessary further particulars. If such further particulars were not forthcoming, adverse inferences might be drawn: see rule 2(2).
7 Bland v Archdeacon of Cheltenham [1972] Fam 157; [1972] 1 All ER 1012.
8 At p 1014 g–h.
9 See p 1016 f–g.
10 See s 6.
11 ‘Any failure to co-operate by a party may result in adverse inferences being made against that party at any stage of the proceedings.’
12 Clergy Discipline Rules 2005, rule 1(c), (d).
13 Ibid, r 33(1) and r 30(1).
14 Such decisions must be taken by a majority: Clergy Discipline Measure 2003, s 18(3)(b).
15 See p 1016 g–h.
16 The Ecclesiastical Jurisdiction Measure 1963 drew a distinction between offences that did or did not involve ‘matter of doctrine, ritual or ceremonial’. There seems no appreciable difference between an offence ‘involving matter of doctrine, ritual or ceremonial’ (the 1963 Measure) and an allegation that an act or omission ‘relates to matters involving doctrine, ritual or ceremonial’ (the 2003 Measure).
17 See p 1017 c–e.
18 Presumably a refusal to take a funeral contrary to Canon B 38, para 2, should be the subject of a complaint under the Clergy Discipline Measure. Similarly, a failure to celebrate Holy Communion or to take Morning or Evening Prayer contrary to Canon B 14 or Canon B 11 should also be the subject of a complaint under the Clergy Discipline Measure.
19 [1991] Fam 1 at p 4A.
20 See Kemp v Wickes (1809) 3 Phillimore 264; Hale, W (ed) A Series of Precedents and Proceedings in Criminal Causes 1475–1640 (reproduction of 1847 edition, Edinburgh, 1973), LIIGoogle Scholar.
21 Note the wording of the Canon: ‘Every minister shall use only the forms of service authorised by this Canon …’, emphasis added.
22 Canon B 5, para 3.
23 Canon B 5, para 4.
24 See Barnes v Shore (1846) 8 QB 640; Long v Lord Bishop of Cape Town (1863) 1 Moo PCNNS 411 at 445 per Lord Kingsdown; Bishop of Winchester v Rugg (1868) 1 LR 2 A and E 247, Rugg v Bishop of Winchester (1868) LR 2 PC 223; Sieveking v Kingsford (1868) 36 LJ Ecc 1; Bishop of St Albans v Fillingham [1906] P 163; Calvert v Gardiner [2002] EWHC 1394 (QB).
25 See Hale, A Series of Precedents and Proceedings, CCCCXCIII.
26 See, too, the Vestures of Ministers Measure 1964 (now repealed).
27 See Bursell, RDH Liturgy, Order and the Law (Oxford, 1996), p 237Google Scholar. Nonetheless, such an argument might be seen as flying in the face of the special prescription of particular robes or vestments to be worn at Holy Communion.
28 See the Clergy Discipline Rules 2005, rr 35–36 and 43–46. Rule 35 states that ‘A witness statement is a written statement signed by the person and containing evidence which that person would be allowed to give orally’ (emphasis added). The italicised words probably do not refer to the general rules of evidence applicable in a consistory court but are a reference to r 33 (1)(f), which permits directions to be given ‘to exclude evidence that would be irrelevant or unnecessary, or which should otherwise be excluded in the interests of justice in accordance with the overriding objective’.
29 Mackonochie v Lord Penzance (1881) 6 App Cas 424 at 446 per Lord Blackburn; Bishop of Exeter v Marshall (1868) LR 3 HL 17.
30 See Halsbury's Laws of England (fourth edition, London, 1975), vol 14, para 306.
31 Re St Mary's, Westwell [1968] 1 All ER 631; Bishop of Exeter v Marshall (1868) LR 3 HL 17 at 53–54; Halsbury's Laws of England, vol 14, para 307.
32 See Halsbury's Laws of England, vol 14, para 307, note 3.
33 Clergy Discipline Measure 2003, s 18(3)(a).
34 The Canons are part of the ‘laws ecclesiastical’ and therefore a failure to comply with them has always been a matter of clerical misconduct.
35 Hale, A Series of Precedents and Proceedings, LIV.
36 See the argument of Jacqueline Humphreys in Humphreys, J, ‘The Civil Partnership Act, same-sex marriage and the Church of England’, (2006) 8 Ecc LJ 302Google Scholar.
37 See Helmholz, , The Oxford History of the Laws of England (Oxford, 2004) vol 1, p 628CrossRefGoogle Scholar.
38 Provinciale: seu Constitutiones Angliae (Oxford, 1679), p 310; see, too, Gibson, E, Codex Iuris Ecclesiastici Anglicani (second edition, Oxford, 1761), p 161Google Scholar.
39 Jacqueline Humphreys (in ‘The Civil Partnership Act, same-sex marriage and the Church of England’, p 302) is therefore incorrect when she states: ‘There is nothing in ecclesiastical law that specifically prohibits…being sexually active within…a [civil] partnership.’
40 Hair, P, Before the Bawdy Court (London, 1972), pp 232–234Google Scholar.
41 See, for example, Hale, A Series of Precedents and Proceedings; Burn, R, Ecclesiastical Law (second edition, London, 1680) vol 2, p 352Google Scholar; Rogers, F, Ecclesiastical Law (London, 1849), p 268Google Scholar; Coote, H, Ecclesiastical Courts (London, 1847), pp 129–130Google Scholar; Phillimore, R, Ecclesiastical Law (second edition, London, 1895), pp 832–833Google Scholar; Halsbury's Laws of England, vol 14, para 1356.
42 [1992] 1 All ER 437. At the retrial, the prosecution only proceeded with an allegation of adultery with one female parishioner; the defendant was convicted and his appeals to the Court of Arches and the European Court of Human Rights failed.
43 But not the mere receipt of a parking ticket.
44 See above, p 250.
45 At p 1016 f–g.
46 At p 1014 g–h.
47 This, of course, is still true in relation to offences involving matter of doctrine, ritual or ceremonial.
48 Code of Practice, para 101. This reflects para 9: ‘Minor complaints should not be the subject matter of formal disciplinary proceedings.’
49 See Halsbury's Laws of England, vol 14, para 1357, note 6.
50 Paragraph 163. See, too, the Clergy Discipline Commission's Guidance on Penalties pursuant to s 3(3)(a) of the Measure in relation to penalties under the Clergy Discipline Measure 2003: <http://www.cofe.anglican.org/about/churchlawlegis/clergydiscipline>, accessed 14 February 2007.
51 Code of Practice, p 4.
52 Subject to recognised exceptions, such as those relating to terrorism.
53 See Guidance on Penalties, p 5.
54 See above, p. 251.
55 For other examples see the Commission's Guidance on Penalties.
56 J Humphreys, ‘The Civil Partnership Act, same-sex marriage and the Church of England’, p 302.
57 Section 39 of the Measure and Code of Practice, paras 1 and 2.
58 This is relatively straight forward if the cleric is male. Nonetheless, the matter is not so straight forward in relation to a female cleric in a lesbian relationship (whether or not within a civil partnership). Lesbian sexual activity was certainly embraced within incontinence and would have led to disciplinary proceedings pro salute animae; however, such proceedings would have been against the woman as a member of the laity, and ecclesiastical proceedings against members of the laity fell into disuse many years before women were entitled to be ordained: see Halsbury's Laws of England, vol 14, para 308, note 10. It may therefore be that any such complaint would be better laid under subsection (d).
59 Sections 30(1) and 31(1).
60 Girt v Fillingham [1901] P 176.
61 Para 163.
62 Code of Practice, para 193; see, too, Re H (minors) (sexual abuse: standard of proof) [1996] AC 563 at 586–587.
63 See the example given in the Code at para 163.
64 Clergy Discipline Measure 2003, s 18(3)(b) and r 50.
65 It may also be useful if undisputed decisions are also disseminated in the early days of the Measure.
66 Clergy Discipline Rules 2005, r 50(5) specifies that ‘a copy of the tribunal's written determination shall be sent to the complainant, the respondent, the Designated Officer, the bishop, the registrar, and the provincial registrar.’ As the determination must in any event be made public (subject to relevant anonymising: see r 5(4)), this does not prevent wider dissemination.
