Christ Church Oxford Trustees Charity Commission Dean Martyn Percy

Christ Church Oxford Trustees could be personally liable for £85K each

Followers of the Dean Martyn Percy story will recognise it as a tragedy not only for the individuals concerned, but also for Christ Church Oxford and the Church of England. We may have welcomed the recent intervention of the Charity Commission who recently wrote to members of the College’s Governing Body, reminding them of their collective and individual responsibilities as Trustees before they crassly embark on yet an additional and unnecessary Tribunal process at this point in time. Nobody spending their own money would waste it in this self-indulgent and profligate way, and neither should they do so when the funding for this re-enactment of the Salem Witch Trials comes at the Charity’s expense.

There have been four previous failed efforts to bully the Dean out of office because he sought to introduce a properly structured safeguarding regime into College. First they wasted half a million pounds on a Tribunal chaired by a retired High Court Judge, who not only comprehensively dismissed every one of the 27 allegations which the malcontent dons had manufactured, but excoriated their behaviour to such an extent that the controllers of the process suppressed the report. The 65 members of the Governing Body were not initially permitted to read the report, and when an anonymous recipient shared it with each of the Governors they received an urgent email urging them to delete it unread. Some may have complied; some not.

There then followed a Trustee’s complaint to the Charity Commission; a failed attempt to allege safeguarding neglect in a complaint to the Church of England; and even a bizarre attempt to tie the Dean to the conviction of one of their own number, Jan Joosten, when he was convicted of possession of child pornography in another country. It too failed.

We now have a fifth iteration of ill-judged malice, and that motivation is evidenced not by a simple decision to legitimately investigate an HR complaint against the Dean, but by the extraordinary disproportionate multiplicity of processes by which a minute-long incident is being pursued.

It appears not to be in dispute that last October ‘something’ occurred, which a young woman believes requires resolution. That is reasonable, right, and proper. Nobody believes that such issues should not be taken seriously and settled, not least the Dean, judging from his long-evidenced history of advocacy of careful listening and impartial process. The parties may have been wearing face masks as they spoke to each other, and the young woman concerned told the investigator that she “might have misunderstood” what the Dean said to her. Such important details are being shrouded in the furore.

What is very publicly at issue is whether the extraordinary overkill of process demonstrates a collective abandonment of reason by a group of people who ought to know better. Does anybody need so much process and cost to sort out the kind of incident which HR departments address competently every day of the week? There were procedures available within the Cathedral, the College, and the University, each with alternative resolution options. None was utilised. Instead, the highly competent young woman was mischaracterised as ‘vulnerable’ to enable the matter to be misrepresented as a ‘safeguarding issue’, and a Clergy Discipline Measure complaint was then sent to the Church of England which, as before, supinely fell in with the persecution project. The basis for that ‘vulnerability’ – the sine qua non of jurisdiction – has been asserted but never specified by the church which appears to think that ‘because we say so’ is a satisfactory response. It is not: it makes the Church of England look petulant or evasive.

The allegation was investigated and dismissed by the police, while simultaneously being hawked around Fleet Street in exaggerated form in order to create and publicise the ‘scandal’ (there needs to be a public scandal to trigger the College’s processes to remove the Dean). A private mediation or HR resolution would not cut the litigation mustard, so a PR company was engaged to compromise the privacy of the individuals concerned in order to serve the corporate purpose by selectively leaking the detail to the Daily Mail – though not the all important context or details.

In a recent letter to the Church Times, the primary complainant (‘Ms X’) has asserted that she is not being used by the College malcontents in these multiple processes. She states that she was open to the possibility of mediation, but that did not proceed because by that time, after three years of litigation stress (never trivialise the effects of litigation stress) the Dean had needed medical support which in the ordinary and proper way brought the legal processes to a hiatus. She would have been similarly protected had she needed it, but she did not and has not. The College jumped the gun and, she indicates, the mediation option closed.

This raises three important points.

First, mediation cannot succeed unless both parties are willing and able to engage. A participant who cannot engage for reputable, professionally-authenticated reasons, is neither refusing nor obstructing mediation. They are ill.

Second, if the mediation was scuppered by the strategic choices of the malcontent dons under the advice of their lawyers’ order to enable them to pursue their own longstanding agenda, then agency was removed from the young woman by the dons: evidently she cannot do that which she was apparently minded to do, and explore resolution privately. Mediation does not, of course, preclude further action should it fail. The dons chose to remove her agency.

Third, the dons are manifestly manipulative: Ms X may think and assert publicly that she is not being used by the dons, but frankly neither did the victims of Peter Ball, John Smyth and Jonathan Fletcher while they were manifestly being used.

Yet Ms X is not alone in being manipulated by the hard core element within the Christ Church Governing Body. As soon as the Charity Commission’s letter arrived, the “wily Censors” wrote to each member. They referenced anger at receiving the Charity Commission’s letter, and reassured the Trustees that they have taken advice and cannot be criticised for taking “the only” course of action open to them to respond to Ms X’s account of what happened. That is seriously misleading. There are College, Cathedral, and University procedures: the Church process had already been initiated by them (in suspiciously record time); there are even private mediation and conciliation services – professionals who could offer expertise in delivering impartial mediation which Ms X now says publicly she was open to considering. There were manifest alternatives. Another £500K Tribunal was patently not needed, and the Commission does well to flag that up in everybody’s interests.

The Trustees are also told: “If the Commission writes to you with further questions, you are very welcome to contact the Censor Theologiae or Senior Censor if you would like support in responding.” The recipients of this letter are supposed to be amongst the smartest people on the planet: one wonders in how many other contexts they need to be guided in telling the truth when asked the simple question of why they acted as they did?

One would hope that a growing body of the Trustees are becoming restless at the total lack of proportion on show here. They ought especially to be so now, for they might well have a personal financial stake in ensuring good process. As far as can be discerned from media reports, the charity’s expenditure on this and the Dean’s legal costs (should he win his impending Tribunal action) are of the order of £5million. So the Charity Commission has effectively written to warn the Trustees that they may be individually liable for amounts in excess of £85K each.

If I were a Trustee, I would be asking myself the following questions:

1. Have I personally taken the trouble to read and digest the full secret Smith Tribunal report, understanding its full contextualisation of the campaign to oust the Dean?

2. Have I personally read and critically analysed the report of the investigator Kate Wood? Might I prefer to see the Dean’s response before committing to a decision that has such a damaging outcome if it is wrong.

3. Have I reminded myself that Ms Wood is neither qualified nor professionally regulated as a risk assessor, and is not on the Diocesan approved list to make any risk assessment? None of those asserting that the Dean is a “medium to high risk” (of what?) have qualification in the necessary specialist area. Somebody is over-claiming expertise here.

4. Is my primary purpose to do justice between the parties, or to pursue an ancillary agenda?

5. Would a rational person in these circumstances uncritically trust the judgment of those who have strategised matters and comprehensively failed at every stage to date?

6. Have I personally seen the letters of instruction, the enclosures, and the advice of Counsel? Barristers’ opinions are like computers: rubbish in; rubbish out.

7. Is everybody who is making these decisions fully and equally informed? Trustees making decisions on the basis of differing understandings might be on perilous ground. One of the first questions considered by an Employment Tribunal is whether the defending organisation has scrupulously followed its own procedures with integrity.

8. Given that the same lawyers have been present at each Governing Body meeting, and have been closely involved in every decision to date, would a Trustee’s private interests be better served by a completely fresh legal team advising on this aspect at the individual Trustee’s own expense? Conflicts of interests have abounded in this matter, not least concerning the College’s legal team. That is already the subject of investigation elsewhere. If I am not prepared to protect myself by spending my own money on securing independent advice, should I be spending the Charity’s?

9. Have I seen a truly independent legal ‘worst case scenario’ opinion for both the Trust and in respect of my personal potential liability?

10. Is Trustee liability ‘joint and several’, and if so what would be the additional costs of litigating the shortfall for any Trustee/s who do not meet a judgment for any reason? Do the existing lawyers acknowledge a conflict of interest in advising in that aspect? How much would it cost new lawyers to get fully up to speed on the history in that eventuality?

11. I am currently sanctioning, on ‘safeguarding’ grounds, an extraordinary regime that inter alia treats as an unacceptable risk the Dean meeting with his own 27-year-old son, unless supervised. Am I absolutely sure that I have not lost my sense of proportion?

12. What exactly can I/we do to protect ourselves from being dragged into unwanted liability, and whom can I trust to ask?