george bell justice
Church of England

The George Bell saga evidences a CofE legal culture which is not merely incompetent, but predisposed toward deception and injustice

How many times must I forgive my errant brother? St Matthew tells us it is seventy times seven, which, by my reckoning, suggests that Archbishop Justin has at least another 75 attempts to perfect his “less than fully adroit” response to Lord Carlile’s report into the case of the late Bishop George Bell. Being Archbishop in these times is not easy.

I cannot pretend that I was mindful of that verse when I was pressed by a journalist on Monday afternoon to call for the Archbishop’s resignation. Nevertheless, I refused. I was, however, prepared to admit anger and frustration at the present impasse during the course of what became a lengthy conversation. The journalist then reported that I intended to call for an apology from Archbishop Justin at General Synod: I will not, because I will not personalise a serious debate. We need to fix the problem, not engage in gesture politics.

We also do not need the deep problems within the Church of England’s safeguarding culture to be used as a proxy war for other issues.

As I wrote a few months ago, I am not so arrogant as to believe that anyone remembers my maiden speech at General Synod. I remember little of it myself, but I do recall sharing the thought that such expertise to which I might claim within the field of safeguarding law arose within the evolution of this legal specialism over the last 30 years or so. Like police, social workers, lawyers, experts and judges, I was part of a culture that made very many errors along the path to our current understanding, which is actually getting pretty good, even if hard-won lessons are still forgotten in the high-pressure world of busy practitioners.

Anyone can make a mistake. What I find mystifying within the church is why we seem to be intent on replicating many of the errors of the past without ever consulting those who have ‘been there, done that, and got the T-shirt’. When I have occasionally allowed my deep frustrations to be seen on the floor of the Synod, it is only because I am in the position of a bomb disposal officer holding the map of a mine field while nobody takes any notice and starts wandering around as they see fit. Bad things predictably happen.

The problem may be succinctly put: Archbishop Justin has a handful of advisors to guide him in these matters – not one of whom has a credible claim to expertise in this increasingly complex specialism. What is especially ironic is that, in the person of the President of Clergy Discipline Tribunals, Lord Andrew McFarlane QC, the Church of England has the country’s leading expert on Safeguarding Law. The legal tome Hershman and McFarlane’s Children Law and Practice is every child practitioner’s bible: it runs to four volumes and is updated every three months with interchangeable loose-leaf inserts. This is a fast evolving field for the specialist: what major institutions do not need is people from other disciplines doing their incompetent best.

When I suggested that the newly passed (and flawed) Clergy Risk Assessment scheme be referred to Sir Andrew to clarify whether “the victim must be believed” is a sound basis for good practice, I was told this was not the done thing, which was a shame. I knew Sir Andrew; I used to brief him. He is one of the kindest and least stuffy people you could ever wish to meet. I cannot believe that he would refuse our Archbishop a few wise words of counsel which he desperately needs at this time.

When I referred to the incompetence of the church in this field, the journalist asked if I could be quoted as saying that Archbishop Justin is incompetent, to which I replied: “Why would I expect an Archbishop to be competent in Safeguarding law?” That is partly why there is no point in seeking his replacement or a personal apology. He is a man of integrity. He rightly believes that we must change the church’s culture toward greater victim sensitivity, but where he is let down is by the lack of competent advice and a misreading of what a good outcome might look like. You do not create justice by reversing a bias against complainants and installing a bias against the accused. You especially do not improve the situation if you do this mindful that the new injustice might improve the church’s image.

Most victims are too smart to fall for that. The church still treats them badly, and they want to see real, practical change, not words of sympathy.

Having searched for a biblical text upon which to found the case for the prosecution of the church, I find it in the Gospel of Matthew:

Therefore everyone who hears these words of mine and puts them into practice is like a wise man who built his house on the rock. The rain came down, the streams rose, and the winds blew and beat against that house; yet it did not fall, because it had its foundation on the rock. But everyone who hears these words of mine and does not put them into practice is like a foolish man who built his house on sand. The rain came down, the streams rose, and the winds blew and beat against that house, and it fell with a great crash’ (Mt 7:24-27).

The Church of England needs to found its Safeguarding on the well-established principles of English Law. It has been off on a frolic of its own, and it has not ended well. Speaking to a very senior figure at Synod I was gently chided: “You want to create a system in accordance with the Law – we are creating one suitable for the Church of England.” Well, just look where that has got us.

Even if it were right for the Established Church to attempt to develop a jurisprudence divergent from that of English and Welsh Law, on what basis do we suggest that we have the knowledge and basic competence to undertake such a project?

Imagine for a moment that a bishop preached a sermon suggesting that St Paul was one of Jesus’s 12 disciples. Might not Archbishop Justin enter a friendly email exchange:

“You appear to have misspoken, dear chap.”

He gets a reply: “No, I didn’t.”

Next email: “Ha! You had me there for a moment :-)”

“I’m serious.”

“WTF?!” (where ‘F’ is ‘flip’).

That’s what it has been like for lawyers with safeguarding experience listening to the church defending the indefensible. So let me now put some meat on the bone to offer some examples of the fundamental errors perpetrated in the course of the George Bell story.

First, the National Safeguarding Team and the church’s advising lawyer did not know the basic law of confidentiality. When initially asked to provide details of how the Core Group reached the conclusion, Bishop Martin Warner was put up as the sacrificial lamb to assert that nothing could be said because it would compromise the complainant’s right to confidentiality.

This was the statement which drew me to first engage with this issue. I described that view of the law as “an absurd fiction” and “nonsense on stilts”. When the Bell Group published a comprehensive legal opinion authored by a retired Circuit Judge and a former Head of the Bar Council, General Synod was told by the then Lead Bishop for Safeguarding that “we have lawyers who think differently”. Really? In that case they are plainly incompetent lawyers.

Lord Carlile has done just what the critics said could and should be done. He has put everything needful to anyone’s understanding of how the case was processed and managed, without in the slightest degree compromising the complainant’s lawful right to maintain anonymity. On that count alone the church’s lawyers were incompetent. They were grossly in error of the basic law known to every safeguarding specialist.

Second, the notion that “the victim must be believed” is one that pervades the field of social work: it is a dogma of the politically correct. The Cleveland Report from 1987 first discredited it, and on four occasions the Courts have had to return to declare it a dangerous and false doctrine, inimical to justice. I published the latest case on the subject, sharing it with General Synod members. It begins as follows: 

Mr Justice MacDonald:
INTRODUCTION

This is very troubling case.In Re E (A Minor)(Child Abuse: Evidence) [1991] 1 FLR 420 at 447H Scott- Baker J observed:

“It is disappointing that, despite the passage of time since the Cleveland report, several witnesses had either not read the report at all or, if they had, they ignored its conclusions in many respects. Permeating the whole case is the underlying theme of ‘the child must be believed’. Of course what any child says must be listened to and taken seriously, but the professionals must be very careful not to prejudge the issue.” 

Seventeen years later Holman J felt compelled to make similar observations in the case of Leeds City Council v YX & ZX (Assessment of Sexual Abuse) [2008] 2 FLR 869 at [143] as follows:

“I wish only to stress… the very great importance of including in any assessment every aspect of a case. Very important indeed is the account of the child, considered, of course, in an age appropriate way. An express denial is no less an account than is a positive account of abuse. It is also, in my opinion, very important to take fully into account the account and demeanour of the parents, and an assessment of the family circumstances and general quality of the parenting… Even 20 years after the Cleveland Inquiry, I wonder whether its lessons have fully been learned.”

Eight years after the decision in Leeds City Council v YX & ZX and nearly 30 years after the Cleveland Inquiry I have found myself during the course of this hearing asking myself the self-same question as that posed by Holman J.

So let there be not a shadow of doubt about it: the church was operating upon the assumption that a doctrine consistently repudiated by the Courts over a 30 year period was the proper approach to adopt in these cases. I call this incompetence and an insecure foundation.

When I challenged a senior member of the National Safeguarding Team with this I was told: “We hear what you say, we just don’t agree with you.” Happily, Lord Carlile did, as para. 43 of his Report makes plain: 

..when faced with a serious and apparently credible allegation, the truth of what Carol was saying was implicitly accepted without serious investigation or enquiry. I have concluded that this was an inappropriate and impermissible approach and one which should not be followed in the future. 

Earlier on in para. 18 of his Recommendations, Lord Carlile refers to this deficiency in these terms: 

I have concluded that the Church of England failed to institute or follow a procedure which respected the rights of both sides. 

and in para. 155 we read:

There was an underlying acceptance that Carol had told the truth – she was referred to as ‘the victim’ – as opposed to ‘complainant’.

Of course she was: the NST and the Church House legal team did not know any better, despite it being knowable and known for the preceding 30 years. 

This level of ignorance is shocking enough, but the subtext of that criticism is deeper and more basic. The church has consistently rejected calls to fulfil its duty to deliver the fundamental right to a fair trial. Not knowing the implications of what they were doing is a big deal, but resisting correction when it is pointed in the plainest terms is far worse. That is what the church did.

The narrative implicitly still accepted by Archbishop Justin is founded upon a breach of a fundamental human right. Had that right not been breached, had the process been fairly conducted with the Core Group Members directed properly to the law and the salient facts, it is extremely unlikely that the Core Group could have reached the conclusion it did. Was it not the lawyers’ duty to help the lay members in their difficult task? If the lawyers failed to direct the process in accordance with tried and tested good practice, the responsibility must lie primarily with them.

Lord Carlile noted a lost opportunity. Professor Maden’s report was balanced and comprehensive. His report was kept from many members of the Core Group whose job was to evaluate it.

At para. 181 we read: 

Given the comments of Professor Maden cited above, had there been full knowledge of them in the Group, my expectation would have been that the majority would have steered back towards a fuller evidential investigation of the claim.

This bring us to a difficult point.

When assembling those to sit in judgment on Bishop George Bell, the church saw the need to offer that group legal assistance. Whom did they choose?

A specialist in Criminal Law? Someone from a Local Authority legal background who advises similar core groups on a weekly basis? Maybe a member of the Law Society’s specialist Child Law accredited scheme – one who handles such issues in court every day of the week?

They appointed the lawyer who represents the Church of England’s insurer, EIG.

This was not even a case which was ever going to be indemnified by those insurers, because the church had already received not one but two opinions from a QC making it clear that the Bell case was not covered by the church’s insurance policy. So why did Church House advisers think it best to employ solicitor Paula Jefferson to guide the Core Group? Might it have been because she was considered a ‘safe pair of hands’ to protect the Church?

As the principal adviser to EIG, she is a regular attender from the outset at victim core group meetings, often to the consternation of some victims and their lawyers. They see her principal role as protecting the church’s interests and those of her major client EIG. Some are even speculating whether her selection for the Bell Core Group was motivated by the church wishing to ensure that any settlement outside the control of EIG did not inadvertently reset the baseline figure for future settlements.

This is not a happy consequence for our relationship with the victim community, and it flows from poor choices at Church House.

There is no doubt that in her core specialism, she provided sound advice. What is less clear is how far her responsibility ran. Lord Carlile does not tell us this, and we must not be unfair to her.

What we do know is that she was a consistent presence at the Core Group meetings and thus able to give continuity of narrative to that Group. Lord Carlile reports that the Core Group failed to be mindful of due process; nobody was appointed to represent the interest of the deceased accused; the Group did not seek out available witnesses; and the paperwork was somewhat chaotically managed so not everybody had the same documents. One could expand upon each and every one of those deficiencies. None of them should have occurred in a case managed by a properly experienced lawyer in this specific area of expertise: they are all basic mistakes, unforgivable in a junior lawyer of three-year call.

I have previously flagged up that the instruction letter asked the expert his opinion as to whether the complainant was telling the truth. That is a schoolboy howler. No safeguarding lawyer could fail to know that this is no part of an expert’s role, and Professor Maden gave it short shrift: “I do not believe that psychiatric or other expert evidence is likely to be of any assistance in establishing whether or not these allegations are true,” he said. It should not have been necessary for an expert to tutor such a lawyer on the basic limits of the role of an expert.

Specifically, he was not asked to address the issue of false memory. The limits of recollection in such a case was a key issue entirely within this expert’s sphere of expertise. Not to ask was not the sign of a lawyer working at the top of her game – that is, if her primary purpose was fairness to complainant and accused alike. But that was not how matters were conducted, for from the outset, para. 155 makes this clear:

My impression from the Minutes is that the justice of the case (for both Carol and Bishop Bell) apparently was not of as great importance as the paramount consideration of the reputation of the Church.

Perhaps the worst criticism is that the report of Prof. Maden was not competently summarised. How hard is it for a competent lawyer to summarise a report expressed in the clearest possible terms? The quoting of one sentence would have sufficed: “the only way to establish that the allegations are true would be through corroborating evidence” (para. 178). 

A misleading formulation of Prof. Maden’s conclusions was given to those who had not read the psychiatric report in full (and why was this not insisted upon?), and this surely informed the unfortunate Press Release of 22nd October 2015, which was plainly inaccurate and stated that none of the expert independent witnesses “found any reason to doubt the veracity of (Carol’s) claim”. This is precisely the opposite of what Prof. Maden had said. We do not know why somebody with access to the full report did not correct that Press Release. If no lawyer saw it, they should have done. If a lawyer did see it, they failed in their duty to advise and ensure that the church was truthful in its public utterances.

Somebody has managed this Group very badly. Was Ms Jefferson’s role to ensure that the church managed a fair process, or was she there only to protect the church’s interests? The two are not necessarily the same. Is it Church House that bears responsibility for the poor management of the Core Group, or was that Ms Jefferson’s responsibility?

Put another way, did the Church of England fail in managing the Core Group, or did it fail by appointing someone to do so who worked outside their core field of expertise? There is an easy way to resolve this.

On receipt of instructions, every solicitor must deliver a ‘Client Care Letter’ summarising the terms of their understanding of what they have agreed to do. That letter should be made available to members of Synod so they can better determine who should be held to account for the manifest failures identified by Lord Carlile.

This whole sorry saga is a target-rich environment for anyone seeking to flag up ineptitude in the handling of these legal problems, but do you know what the worst thing is?

It was not a complex case. They don’t get any easier. There was a single complainant. She has no learning difficulty or psychiatric issues (which frequently occur in such cases). There was no conflict in the expert evidence. There were no multiple reports from different disciplines to reconcile. We did not even have the inconvenience of a robustly argued defence. And yet the church’s lawyers still made a mess of it.

Despite all this, Archbishop Justin seems to think the conclusion of a deeply flawed and chaotic process can be relied upon.

There is a simple measure of how proper lawyers approach such cases. If Bishop George Bell were alive today, and if had children, they would have been removed from his care as soon as the allegations were made. Upon receipt of Prof. Maden’s report and the report of a judge of Lord Carlile’s expertise, these children would have been returned to his care. There would have been no lawful basis to do otherwise.

Given the chaos of the Church of England’s management of these matters through its lawyers and its National Safeguarding Team, on what basis does it claim greater expertise to ignore this routine approach to due and fair process?

To return to the Gospel of St Matthew, here you have seen exposed the insecure foundations upon which Archbishop Justin still purports to found a narrative that ‘we got it right, really’. We need to ensure that the church recognises how devastating Lord Carlile’s report actually is. It may not be easy. Synod offers us an opportunity.