Integrity should lie at the heart of every public institution. In the United Kingdom, Her Majesty the Queen models the highest standards of behaviour which ought to be followed across the layers of our society, but few live up to her example, which is why we have a Parliamentary Commissioner for Standards, a Solicitors Regulation Authority, and a Charity Commission.
Vigilance is essential, but we also rely heavily upon the personal integrity of those peopling our institutions.
Judicial standards concerning ‘apparent bias’ are high, and were well explained in the case of the General Pinochet extradition. Amnesty International had intervened in the appeal in the House of Lords which found against Pinochet by a majority of 3:2. Lord Hoffmann, one of the majority, was chair and director of Amnesty International Charity Ltd, but without any suggestion of personal involvement in the case. However, that was enough to set aside the entire proceedings. The lead judgment explained:
Senator Pinochet does not allege that Lord Hoffmann was in fact biased. The contention is that there is a real danger or reasonable apprehension or suspicion that Lord Hoffmann might have been biased, that is to say it is alleged that there is an appearance of bias not actual bias.
From such cases we derive the expectation that from the lowliest JP to the members of the Supreme Court, each will have proper regard to the well-established standards of judicial probity. Those judging others must not only be uncorrupted and wholly independent, but also free of all taint of suspicion. This brings us to the latest development in the vexed case of the malcontents of Christ Church, Oxford, and their continuing efforts to remove their Dean, the Very Rev’d Professor Martyn Percy.
In 2020, the Church of England foolishly admitted two members of the College faction seeking the Dean’s removal to the national Core Group considering a separate allegation (later roundly dismissed). That was utterly inappropriate. How could complainants be permitted to sit and decide whether their own complaint merited a full inquiry?
It was from that débâcle that pressure was placed on the Church of England to draw up a conflicts of interests policy for such meetings, and earlier this month it was published. The policy makes clear that all involved must be impartial and mindful of the risk that judgments may be affected by secondary issues. Further, “the principle of self-declaration is foundational”. You cannot read the new policy and miss the point that conflicts of interest are serious, to be avoided, and that participants are expected to be smart and honest enough to recognise them when they arise.
Earlier this month the Charity Commission wrote to the Governing Body of Christ Church asking a number of very specific questions about the processes by which they had reached their conclusion that it was appropriate to spend charitable money to create a tribunal to determine whether a two-minute alleged incident, which has been determined by the President of Tribunals of the Church of England, Dame Sarah Asplin, to not constitute “serious misconduct“, even if true, might nevertheless constitute behaviour that was “immoral, scandalous or disgraceful“.
The President had assessed that the conduct alleged was not sexual, nor distressing to the female complainant in any way, although she had stated that she would have accepted an apology if offered, for what many might describe as a socially awkward interaction.
The Charity Commission’s letter indicates deepening concern that Christ Church Trustees were in danger of incurring potential personal liability for wasted costs. They can now have no excuse to be in any doubt about the precariousness of their position.
Plainly this has been on the minds of the Charity Commission for some time. Long before the complaint of Ms X, the then Commission Chair, Baroness Stowell, wrote in a letter to The Times on 24 March 2020:
..the dispute at this august charitable institution presents an opportunity to make an important and timely point: the law may determine whether an institution is a charity, but the public determine what charity means to them. Charity is not a convenience, but a badge of honour that should inform how those responsible go about their work every single day… Powerful institutions that enjoy status as registered charities should not assume that the tacit public support they rely on today will continue tomorrow if they fail to meet public expectations.
The public and donors are indeed watching and judging the stewardship of the Christ Church Trustees, especially those appointed to sit on the Tribunal. Any charity’s tribunal process must be demonstrably fair and free from any suspicion of a ‘show trial’ with a predetermined outcome. Any suspicion it might not be so is a serious matter: justice must be seen to be done.
The public cannot have confidence in this Tribunal as presently constituted.
Integrity plainly exists in the independent tribunal Chair, Rachel Crasnow QC, who is a distinguished lawyer in the employment law field. However, the two others are members from the Christ Church Foundation; one from the Cathedral Chapter and one from the College Governing Body.
The College nominee is Professor Mishtooni Bose, the former wife of one of the principal movers against the Dean. Happily, notwithstanding their marital separation, they are reputedly on good terms. This is to be applauded; however, such a relationship between a contributory prosecutor and someone exercising a quasi-judicial function might cause the average wo/man on the Clapham omnibus to have a few qualms about justice being seen to be done. The qualms about Lord Hoffmann’s Pinochet involvement began with his wife’s involvement with Amnesty International.
The nominee from the Cathedral Chapter is the Archdeacon of Oxford, the Venerable Jonathan Chaffey. He lives next door to the Sub-Dean, Canon Richard Peers, who accepted responsibility for advancing the contentious “dodgy risk assessments” about the Dean. They meet frequently, not least to say the Daily Office. How many of us would be happy to find such a close neighbour and associate of the prosecution team sitting on their jury? I understand that it is the Dean’s case that the way in which the complaint against him was curated, received, and processed to become the CDM complaint bears the careful examination by the Tribunal. He believes the Archdeacon played an active early role within this history and wishes to put the matters, and supporting evidence to him. Plainly, the Archdeacon cannot be an adjudicator and witness in the same matter.
In how many meetings have the College nominees attended where a principal topic for discussion has been: “So, how do we get rid of the Dean now?” 20? 50? 80? And how many (if any) since they were appointed to the Tribunal? The Charity Commission will surely seek the number and the supporting minutes.
Christ Church statutes provide: “..any person who has been involved in or associated with the making of the complaint or any part of it or who has been involved in any preliminary hearing or investigation should not sit on the tribunal.” Archdeacon Chaffey is alleged to have had multiple such involvements as an early receiver of the allegation and briefer of the Bishop of Oxford, the Rt Rev’d Dr Steven Croft.
The initial draft of the CDM complaint against the Dean referenced such involvements, but the references appear to have been deliberately excised from the finally submitted document, thus hiding the evidence that might exclude him from nomination to the Tribunal. Why? He may also be able to shed light on how the contentious risk assessments came into being.
It is not unreasonable that such matters should be explored, and on all these questions the Archdeacon is a material witness of fact. How, then, can he sit in judgment over his own testimony? This is pretty basic stuff, and the primary responsibility must lie with the Archdeacon to recuse himself if he is to comply with the standards set out in the Guidelines for the Professional Conduct of Clergy, of which Paragraph 9.7 provides: “There are a number of situations where clergy may have a conflict of interest and they should declare it whenever this is appropriate, withdrawing from the situation if required. It is a delusion to think we can be impartial when there is a conflict of interest.”
The Archdeacon can hardly claim greater insulation from the perception of bias than Lord Hoffmann.
This ought to be sufficient for the Archdeacon to recuse himself, but there is a complication. His stepping back would require the other Christ Church member, Professor Mishtooni Bose, also to stand aside, because the College and Cathedral must have equal numbers on the tribunal. There is no other Chapter member willing and able to be involved. Would that be so very bad?
One might reasonably wonder why any risk should be taken in such important matters. Why not simply withdraw the nominated members and leave the independent Chair to hear the case as a sole adjudicator? Sir Andrew Smith sat alone when he adjudicated on the previous 27 allegations brought against the Dean. The problem, of course, is that Sir Andrew acquitted the Dean.
The new Tribunal will be receiving into evidence an email between College Trustees, in which the writer lets the cat out of the bag: “A second internal Tribunal with representatives from both Chapter and non-Chapter… would allow us to decide what we think is best. And the Tribunal discussions would remain wholly confidential if the right people were chosen.”
In similar vein, another Trustee approached the Alumni Association insisting that his letter be placed on their private Facebook page. They duly obliged and it found its way into a recent edition of Private Eye:
The letter, which the Eye has seen, makes it clear the sole objective of the governing body over the past four years has been to get rid of Percy: ‘the trustees have lost confidence in the Dean but… the problem for Christ Church is that its 19th century statutes are no longer fit for purpose, since they set an almost insurmountable bar against removing the Dean’.
I am not sure the letter was quite the PR triumph the Trustee hoped for. Surely, read with the earlier email, it raises legitimate concern about a subversion of ordinary standards of fair play; essentially, if you can’t secure the ‘right’ result under the Statutes, secure it by appointing the ‘right people’ who can outvote the independent Chair.
Surely the average member of the public, for whose commonsense Baroness Stowell plainly has great respect, would worry that the Tribunal has not been constituted in a manner in which everyone can have confidence?
But it gets much worse than this.
The Charity Commission has significantly drawn attention to the possibility that every Trustee, which will include both Tribunal nominees, might be called upon to repay the Charity from their personal funds – potentially £50-80k+. This raises a clear financial conflict of interests. Inevitably, it must be easier to justify expenditure to the Charity Commission if the Dean is found ‘Guilty’.
A Tribunal member who received the simple facts at the outset (as did all Governing Body members and approved this expensive mechanism of resolution) but then acquits would place him/herself under the severest risk of being judged to have wasted huge sums of money, especially once the facts had already been adjudicated by the President of Tribunals not to constitute “serious misconduct”.
How can such circumstances not raise the perception of conflict of interests? Both nominees have the plainest of financial interests in the outcome.
Archdeacon Chaffey would plainly be ineligible to sit on a core group under the newly-adopted CofE conflicts of interests policy. So how can he, in good conscience, sit on this Tribunal?
It is important to underline that these matters are raised as points of principle. We must have unquestionable integrity in all the major public institutions, not least a charity in receipt of substantial public funds.
By all accounts from Cathedral congregation members, Archdeacon Chaffey is a thoroughly decent and compassionate man, and one of the Cathedral clergy staff whom they believe to be sincere when he prays for the Dean and his wife. That is not enough, however. On more than one count there is a legitimate concern that he either has a conflict of interests, or might reasonably be seen to have one. As a matter of principle, there must not be the slightest reason to suspect that this is a tainted trial. The Charity Commission knows that, and so does the Church, and so should Archdeacon Chaffey.
“It is a delusion to think we can be impartial when there is a conflict of interest.”
Perhaps Christ Church thinks it can easily afford the perception of a ‘Show Trial’ – but can individual Trustees?