This is a guest post by Martin Sewell and David Lamming, members of General Synod.
The statement posted belatedly on the Diocese of Oxford website on 18th June Decision by the President of Tribunals is a perfect illustration of the biblical proverb ‘As a dog returneth to his vomit, so a fool returneth to his folly‘ (Prov 26:11).
When the CDM nightmare of Canon Paul Overend ended with a clear decision by the Deputy President of Tribunals His Honour Judge David Turner QC that he had no case to answer, both the Diocese of Lincoln and the Cathedral issued swift statements on their websites of admirable clarity, integrity, and simplicity:
After due process, a ruling has been made in the case brought under the Clergy Discipline Measure against the Revd Canon Dr Paul Overend, Chancellor of Lincoln Cathedral. It was determined by the Deputy President of Tribunals that there is no case to answer and no further steps should be taken…
That on the Cathedral website, added: “The determination of the Judge speaks for itself.”
The President of Tribunals Dame Sarah Asplin (a Court of Appeal judge), after considering the confidential report of the Designated Officer following his ‘due inquiries’, has made a similar determination in the case of Martyn Percy, Dean of Christ Church, Oxford, and one might have hoped that the Diocese of Oxford would equally own the consequences of the determination in its entirety. It does not do so. Instead, it prevaricates and misrepresents the import of the decision, quoting selectively from it. However, let everyone be clear about the consequences for the Dean, the Cathedral, its congregation, and the Diocese.
As the Clergy Discipline Measure 2003 expressly provides, following the President’s decision the complaint is at an end “and thereafter no further steps shall be taken in regard thereto”. It has been dismissed. It has ceased to be. It has departed to join the choir invisible. The core group of the Church of England has no further interest in the matter and has no further role. The status of the Dean within the Church has returned to that which he held before.
The President issued a decision of admirable conciseness and clarity, and there is not the slightest reason why, suitably redacted to preserve the anonymity of the female complainant, it should not be placed on the Diocesan website for all to read. In that way there would be no possibility of anyone misunderstanding or misrepresenting it. The Diocese does not choose to do so for reasons of its own which are not to its credit.
Those who have campaigned to free the Dean from the false narrative that he presents a ‘safeguarding risk’ within Christ Church Cathedral and the College are anxious for the Diocese and the College to embrace the truth of the decision. It is already out there suitably and responsibly redacted for anyone to read. The reticence is illogical, save that when the text is read it raises some serious questions.
First, however, let the following be noted.
In 2018 the College malcontents initiated a Tribunal process against the Dean. When in August 2019 the decision made by a retired High Court judge went against them, they refused to publish it. College alumni have been pressing to ascertain what the witch-hunt against the Dean has and will cost A Freedom of Information Act (FoI) request (about which, more another time) has produced a partial answer (£1,187,445.11 up to 27th April 2020). The College is using procedural objections to evade answering the question fully. Canons Graham Ward (the formal complainant in the CDM process against Martyn Percy) and Richard Peers (the Sub Dean) have still failed to account for how the ‘Dirty Dossier‘ Risk Assessments came into being, and the Bishop of Oxford appears remarkably incurious to investigate this prima facie impropriety.
Now the President’s decision is being selectively quoted by the Diocese of Oxford by omitting the important section of her decision in which she set out her assessment of the alleged incident, recording that “the language and the conduct as a whole was not overtly sexual” and that the woman concerned “accepts that she was not upset in any way… stated originally that she was not perturbed… and stated that she would have accepted an apology if the Dean had admitted what she says took place”. It is to be noted, incidentally, that the website statement is also disingenuous by claiming confidentiality for the decision, while at the same time freely quoting such parts of it as further their narrative.
Readers might usefully ponder the proposition that the people calling for what the Church of England notionally supports – ‘Transparency and Accountability’ – are finding very little of it coming from the Bishop’s and the Dons’ side of the table. A useful rule of thumb is that the people doing the cover-up or being defensive might well be the people with something to hide or that they are not able to justify.
Why do the Dean’s supporters say that the placing of the decision into the public domain is proper and lawful?
First, the Clergy Discipline Measure 2003 is equivalent to an Act of Parliament: it does not forbid publication.
Second, as the President states in her decision, it is the report of the Designated Officer that is ‘strictly confidential’: such a diktat is not applied to her decision.
Third, if the matter went to a full hearing before a bishop’s disciplinary tribunal, the tribunal’s decision would be published on the Church of England website. There is no reason in law or logic for a decision under Section 17 of the Measure that the complaint should not be referred to a disciplinary tribunal, and thus being at an end, being secret or confidential. What if the President made an error of law?
Fourth, the recent amendments to the CDM Code of Practice (sought to be relied on in the Diocesan website statement) do not mention the decision under Section 17 and are clearly concerned with the situation while the complaint is being investigated and, in colloquial parlance, sub judice.
Fifth, Canon Graham Ward, a leading malcontent (yet nevertheless determined by the Bishop to be “a fit and proper person” to bring the complaint) is the formal complainant and (along with the Dean as respondent) the ‘party’ to the proceedings. If the Diocese view of the law were correct, Canon Ward would not be permitted to show Ms X the decision so that she might fully understand why the President reached the decision she did.
Finally and most prosaically, this is not a novel question and has been answered before in another case, and the answer shared amongst the ecclesiastical law community. An email dated 19th August 2020 from Conor Gannon, Secretary to the President of Tribunals, stated:
From our perspective, we treat decisions of the President as confidential. So we do not share decisions with the media or anyone except the parties themselves. However, it is entirely up to the parties what use they make of the decision or parts thereof. The bishop is free to do what he wishes with the decision, including making that public if he sees fit.
So both Graham Ward and Martyn Percy as the parties, and the Bishop, are free to use the decision, or parts of it, as they see fit. In the Dean’s case, we understand that he was content for the whole of the President’s decision to be made public (appropriately redacted) so that those people who are interested could read it in its entirety and comment on it. It is now three weeks since the decision was handed down. If the President were unhappy with her judgment being responsibly redacted and reported, it is likely that those responsible would have heard by now.
Now on matters of substance these are the questions for Bishop Steven Croft and Canon Graham Ward to answer:
Do you adopt and affirm all of the findings of the President in her decision, specifically that:
The alleged incident does not constitute “serious misconduct” under the CDM;
Nothing done or said was “overtly sexual”;
Within the context of the Church’s disciplinary framework, it was not proportionate to refer the matter to a disciplinary tribunal;
Ms X was not distressed by what had happened; and
The brief incident should be viewed with proportionality?
That would be a very good starting position but more can flow from that.
Do you agree that those who urged proportionality from the outset are fully vindicated by the President’s decision and were accurate predictors of the likely outcome?
Do you accept that the Risk Assessments submitted to support the CDM complaint (the authorship of some as claimed in the headings to the Assessments has been disclaimed by the persons named), and some of which were constructed upon a false premise of sexual risk which has now been wholly discredited, must be disowned and withdrawn forthwith?
Is it accepted that the criticism of supporters of the Dean for allegedly “[downplaying] the severity of the complaint” (see the statement on the Diocesan website dated 19th November 2020) and thus impliedly characterising the incident as extremely serious, cannot be reconciled with the decision of Dame Sarah Asplin?
Will you establish and cooperate with a proper independent investigation into how the Risk Assessments came to be falsely attributed to third parties, and how this was not reported by Canon Graham Ward and the alleged authorship of Kate Wood corrected as soon as she disclaimed authorship (see the report in the Church Times on 17th March 2021)?
Do you agree that the College Tribunal can only decide whether the Dean is guilty of “conduct of an immoral, scandalous or disgraceful nature incompatible with the duties of the office or employment”, which can only lead to his removal from office (and cannot, therefore, provide redress for Ms X), and that the prospect of establishing this in a case determined not to be serious misconduct by the President leaving the Dean in good standing within the Church of England, is a) remote, and b) disproportionately expensive and a waste of charity monies?
One can understand why Bishop Steven and Canon Ward might find these questions uncomfortable. Be assured, there will be more.