Ecclesiastical First Report


Clergy Discipline Measure—Supplementary material to the Comments and Explanations

DISCIPLINARY PROCEEDINGS IN OTHER CHURCHES IN THE ANGLICAN COMMUNION
ChurchMisconduct TribunalMajority ProofPublic
Church of AustraliaConduct unbecoming the office and work of a priest; racial or sexual abuse or harassment. Three—or can be five if bishop so determines. Majority"may determine the charge in the manner in all respects as the tribunal in its discretion thinks best suited for that purpose." Private—but tribunal may direct public hearing.
Church of CanadaConviction of an indictable offence, immorality, disobedience to the bishop, violation of Constitution or Canon, wilful or habitual neglect of the exercise of the ministry or its duties, contrary doctrines, contemptuous or disrespectful conduct towards the bishop of the diocese. Each diocese decides its own procedure within general principles set down by General Synod.
Church of IrelandEvery act that would have been a breach or violation of the ecclesiastical law of the United Church of England and Ireland; a breach of the ecclesiastical law of the Church of Ireland and all crimes punishable by law in Ireland. Three, five or seven.Majority Public—unless judges deem it expedient to sit in private.
Church in New ZealandConduct inappropriate or unbecoming the office and work of a Minister—to include adultery, corruption, immorality, harassment, family relationships, contravention of Canons. Not less than three.Tribunal regulates its own procedures. Tribunal regulates its own procedures. Tribunal regulates its own procedures.
Scottish Episcopal ChurchBehaviour or conduct unbecoming—likely to bring scandal, bring Church into disrepute—include—criminal conviction, sexual immorality, habitual abuse of alcohol or drugs. Habitual neglect of duties, carelessness or gross inefficiency. Violation of Canons, disobedience of episcopal authority. Eleven  Unanimous or by majority. Civil Law Rules of the Court of Session currently in force. Normally in public, unless determined otherwise by Tribunal.
Church of Southern AfricaCriminal conviction, sexual immorality, conduct giving scandal or offence, heresy, schism, violation of canons, disobedience, neglect of duties. Public, unless on the ground of public morals, in whole or in part, private.
Episcopal Church of the United StatesCrime, immorality, contrary doctrine, violation of BCP rubrics, Canons, violation of ordination vows, habitual neglect, conduct unbecoming. Decided by each diocese—majority to be priests or deacons. Two-thirds majority."Clear and convincing evidence". Not mentioned—but presumably public.
Church in WalesBelief incompatible with doctrine of the Church, neglect of duties or persistent carelessness or gross inefficiency, scandal or offence, wilful disobedience. Five—including a legally qualified chairman. Majority.Civil standard—"balance of probabilities": CO 28 80/98—appeal judgement before Mr Justice Latham. Private, unless after a request from either party, the tribunal decides to sit in public.



TRIBUNAL PROCEDURES ACROSS OTHER PROFESSIONS AND OCCUPATIONS (INCLUDING STANDARD OF PROOF)
Profession/Occupation
Tribunal Members

Hearing—Public/Private

Standard of Proof
Decision by majority/ unanimousGrounds for disciplinary proceedings
Accountant (1)Joint Disciplinary Tribunal with three or five members at the discretion of Executive Committee. Legally qualified chairman. Private.Civil ("reach a finding" on the professional etc. Conduct of member). Majority.Committing an act or default likely to bring discredit on the Institute of Chartered Accountants or the profession.
Architect (2)Professional Conduct Committee—quorate with three members (one elected member of Architects Registration Board, one appointed member of the Board and one nominated by the President of the Law Society). Public (unless in the interests of justice, the PCC directs all or part in private). Civil.Majority. But if more than three members and a tie, the chairman's casting vote is to be cast in favour of the architect if equal votes. Unacceptable professional conduct.
Barrister (3)Disciplinary Tribunal with five members (one judge, 2 lay representatives, two barristers)—quorate with three members. Public for most serious cases but tribunal has discretion to hear in private. Criminal for charges of professional misconduct but civil for charges of inadequate professional service. Majority.Professional misconduct, breach of Code.
Clergy of the Church of
England (4)
Disciplinary tribunal with five members, two lay, two in Holy Orders (and a practising lawyer/ judge as chairman). Private unless public hearing is requested by respondent for whole or part in public, at discretion of the tribunal in interests of justice. Civil ("same as in proceedings in the High Court exercising civil jurisdiction). Majority of members.Doing any act in contravention of the laws ecclesiastical; failing to do any act required by the laws ecclesiastical, neglect or inefficiency in the performance of the duties of the office, conduct unbecoming or inappropriate to the office and work of a clerk in Holy Orders.
Dentist (5)Professional Conduct Committee—quorate with seven members, one neither elected or a dentist (advised by a legal assessor). Public (unless in the interests of justice, the PCC directs all or part in private). Proof is "to their satisfaction". Majority of members present.Conviction of a criminal offence, serious professional misconduct, serious professional incompetence.
Doctor (6)Professional Conduct Committee with eleven members (not less than six elected and two appointed and two lay members), quorum is six. Legal assessor advises PCC. In public, but PCC has discretion to exclude public where any person would suffer undue prejudice or in the interests of justice. Not stated in Rules. In practice the PCC advised to use criminal standard. Majority (if votes are equal, question is deemed to be resolved in favour of the practitioner). Criminal conviction in British Isles, serious professional misconduct.
Lloyd's Insurer (7)Disciplinary tribunal of three (a legally qualified chairman, one working member and one external member of Lloyds). Oral hearing in private unless defendant requires a public hearing in which case the tribunal has discretion to direct that part be heard in private if considered necessary in interests of justice. "the standard of proof applicable in civil cases". Majority.Contravention of Lloyds Acts, bylaws, regulations or directions etc. Engaging in or being associated with any discreditable conduct whether or not connected with the business of insurers.
Nurse, Midwife and Health
Visitor (8)
Professional Conduct Committee constituted by UK Central Council for Nursing, Midwifery and Health Visiting with not more than nine members (quorate if at least two members of the Council constitute a majority of those considering a particular case). Legal assessor advises PCC. Public but PCC has the discretion to exclude public in interests of justice. Not stated in Rules. PCC has to decide if charges "proved to their satisfaction". In practice PCC advised to use criminal standard. Majority (if votes are equal, motion is deemed to be resolved in favour of respondent). Misconduct—Code of professional conduct.
Pharmacist (9)Statutory Committee quorate with three members of whom legally qualified chairman is one. Private unless the chairman directs that the hearing be in public. Committee has to decide "whether the conviction or misconduct alleged is proved". Majority but in case of equality of votes, the chairman has casting vote. Conviction of any criminal offence: such misconduct as in the opinion of the Statutory Committee renders the convicted person unfit to have his name on the register.
Police (10)* Any offence in the Code of Conduct


(a) Officer
Three senior police officers PrivateBalance of probabilities. Simple majority and decision shall state whether it was unanimous or by a majority
(b) Senior OfficerSingle person plus one or more assessors. Private.Balance of probabilities. Decision of a single person.
Solicitor (11)Disciplinary tribunal quorate with three members (including one lay member). Public with discretion to the tribunal to hear a case in private at the request of a party or if anyone would suffer prejudice by a hearing in public. Whether tribunal "finds any of the allegations to have been substantiated." Majority.Breach of rules, conduct unbecoming a solicitor.
Veterinary Surgeon (12)Disciplinary committee quorate with five members (legal assessor advises on law). In public (unless in the interests of justice the committee directs all or part in private). Proof "to their satisfaction". Majority, chairman has no casting vote.Disgraceful conduct in any professional respect, criminal conviction, incorrect or fraudulent registration.


  Notes:

  (1)  Regulated by Royal Charters, Byelaws and Regulations.

  (2)  Tribunal provided for in the Architects Act 1997—Procedural rules for the tribunal made by the Architects Registration Board under s 14(6) of the Act are not made by Statutory Instrument.

  (3)  The Council of the Inns of Court Rules 1996.

  (4)  Draft Clergy Discipline Measure, clauses 18(3) and 22.

  (5)  Dentists Act 1984, section 2(2) and Schedule 1 Part II and the General Dental Council Professional Conduct Committee (Procedure) Rules 1984 (SI No. 1517).

  (6)  Regulated by Medical Act 1983 (ss 1(3), 36, 43, Schedule 4), the General Medical Council (Constitution of Fitness to Practise Committees) (Amendment) Rules Order of Council 1987 (SI 1987 No. 1120) and the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules Order of Council 1988 (SI 1988 No. 2255) and r 48 and 52. Health Act 1999 may have effect in future on aspects of regulation.

  (7)  Power to establish Disciplinary Committee by byelaw: Lloyds Act 1982 s.7. Disciplinary tribunal is regulated by Disciplinary Committees Byelaw No. 31 of 1996, Schedule 2 Lloyds Disciplinary Rules, in particular, rules 2.3, 2.6, 3.3 and 21.6. Appeal tribunal consists of three lawyers: Appeal Tribunal Byelaw No. 32 of 1996.

  (8)  Regulated by Nurses, Midwives and Heath Visitors Acts 1979 and 1992 and Nurses, Midwives and Heath Visitors (Professional Conduct) Rules 1993 Approval Order 1993 (SI 1993 No. 893 as amended by SI 2001 No. 536) rr12, 17(4), 23(2), 23(3) and 26 (3), (5). Health Act 1999 may have effect in future on aspects of regulation.

  (9)  *Pharmacy Act 1954 section 7 and Schedule 1 and the Pharmaceutical Society (Statutory Committee) Order of Council 1978 (SI 1978 No.20). *Modernisation by way of replacement of the Statutory Committee by a Disciplinary Committee with five members (two professional, two lay members and legally qualified chairman) is being formulated.

  (10)  (a)  SI 1999 No. 730 Police

  The Police (Conduct) Regulations 1999

  (NB This has Code of Conduct as a Schedule)

    Regulation 23 (3)

    The officers conducting the hearing shall not find that the conduct of the member concerned failed to meet the appropriate standard unless the conduct is—

    (a)  admitted by the member concerned; or

    (b)  proved by the person presenting the case on the balance of probabilities to have failed to meet that standard.

  (10)  (b)  SI 1999 No.731 Police

  The Police (Conduct) (Senior Officers) Regulations 1999

    Regulation 20(1)

    (1)  The tribunal shall review the facts of the case and decide whether or not the conduct of the senior officer concerned met the appropriate standard.

    (2)  The tribunal shall not find that the conduct of the senior officer concerned failed to meet the appropriate standard unless the conduct is—

      (a)  admitted by the senior officer concerned; or

      (b)  proved by the person presenting the case on the balance of probabilities to have failed to meet that standard.

    Sanctions

    Regulation 22

    (a)  Dismissal from the force.

    (b)  Requirement to resign from the force as an alternative to dismissal, taking effect forthwith or on such date as may be specified in the recommendation or decision.

    (c)  Reprimand.

  (11)  Regulated by Solicitors Act 1974 and Solicitors (Disciplinary Proceedings) Rules 1994 (SI 1994 No. 288).

  (12)  Veterinary Surgeons Act 1966 and the Veterinary Surgeons and Veterinary Practitioners (Disciplinary Committee) (Procedure and Evidence) Rules Order of Council 1967 (SI 1967 No. 659).

STANDARD OF PROOF

1.   Human Rights

  Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), incorporated into English law under the Human Rights Act 1998, protects the right of the individual to a "fair and public hearing by an independent and impartial tribunal established by law". It does not specify any standard of proof for the purposes of a fair hearing.

2.   English Law: Civil Standard of Proof

  Since 1996 the principal guidance for Courts and Tribunals has been that laid down by the House of Lords in Re H (minors) (sexual abuse: standard of proof) [1996] AC 563 at 586-587: [1996] One All ER One at 17. In brief, the approach is that "the more serious the allegation the less likely it is that the event occurred and hence the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability."

  3.  Tribunals are required to assess the weight of the evidence in support of a particular allegation with this approach in mind. There is nothing to indicate that this is presenting any difficulty. [1]

DOUBLE JEOPARDY

  The purpose of giving a disciplinary committee powers over a professional man who has been convicted of a crime is not to punish him for a second time for the same offence, but to protect the public who may come to him as patients and to maintain the high standards and good reputation of an honourable profession.

  Ziderman v General Dental Council [1976] 2 All ER 334 [1976] 1 WLR 330 P.C.

  The maxim that a person ought not to be punished twice for the same offence does not apply to proceedings before a disciplinary committee.

  R v Statutory Committee of the Pharmaceutical Society of Great Britain [1981] 2 All ER 805 [1981] 1 WLR 886.

DRAFT GUIDELINES FOR THE PROFESSIONAL CONDUCT OF CLERGY

The Convocations of Canterbury and York

  Draft Document for discussion purposes, having only the authority of the Working Party by whom it was prepared

  Comments should be sent to The Synodical and Synodal Secretaries Central Secretariat Church House Great Smith Street LONDON SW1P 3NZ

  Comments should arrive not later than 31 July 2002

PREFACE

  The publication of a report commissioned by the two Lower Houses of the Convocations of Canterbury and York is a rare event in modern synodical times. Its genesis lies in the perception of the joint Standing Committees that it was time that Guidelines for the professional conduct of the clergy should be drafted by clergy for clergy. Francis Bridger, in his lucid authoritative and challenging theological reflection which precedes the draft Guidelines sets out both the pragmatic and theological imperatives which have driven and informed our work.

  The members of the group were: Canon Frank Dexter, Prebendary Kay Garlick, Canon Peter Hill, Fr David Houlding, Canon John Stanley and Canon Hugh Wilcox (Chairman). Canon Michael Hodge and the Ven David Jenkins, the Synodical and Synodal Secretaries of the Convocations, were joint secretaries. The Revd Dr Francis Bridger, Principal of Trinity College, Bristol, was invited to act as a theological consultant. We are grateful to all those who shared their thinking with us and especially to the Ven Gordon Kuhrt, the Director of the Ministry Division of the Archbishops' Council; to Mrs Diana Webster, the Registrars of the two Provinces and to the staff of Church House for their advice and help.

  The Guidelines are now published so that clergy and lay ministers can reflect on them and share their reactions with us. This is, we hope, the beginning of a conversation within the Church in which we hope that the laity as well as clergy will join, for some laity are ministers, some as church officers have a particular duty of care for their clergy, and all as members of the body of Christ should be concerned to affirm and uphold those called by God and the church to ministry. It is our hope that following the period of consultation a final text can be laid before the Convocations and the General Synod and commended to the whole Church not as a legal document but as acceptable Guidelines for clergy and ministers.

Hugh Wilcox

1 February 2002


1   For example, the Competition Commission Appeal Tribunal in the first appeal under the Competition Act 1998 applied it "Within the civil standard, however, the more serious the allegation the more cogent should be the evidence before the court concludes that the allegation is established on the preponderance of probability" (see Napp Pharmaceutical Holdings Ltd v Director General of Fair Trading January 2002). Back


 
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