1 Letter from the Secretary to the Clergy Discipline Commission, October 2008.

2 That is, since 1 January 2006.

3 In the relevant period, penalties of prohibition or removal from office were imposed under s 30(1) of the Measure in two cases. The total number of clergy to whom the provisions of the Measure apply is more than 22,000.

4 A comprehensive collection of the transcript of judgments delivered by Bishop's Disciplinary Tribunals may be found at <http://www.ecclaw.co.uk/clergydiscipline.php>, accessed 25 January 2009.

5 , GH and Newsom, GL, Faculty Jurisdiction of the Church of England (second edition, London, 1993), pp 51–52Google Scholar; the quotations are from Fagg v Lee (1873) 4 A & E 135 at p 150, per Sir Robert Phillimore, Dean of the Arches.

6 Newsom and Newsom, Faculty Jurisdiction, p 53. See, too, the Faculty Jurisdiction Rules 2000, SI 2000/2047, r 16(2)(a), by which the category of interested persons who may object to a proposed faculty includes ‘any person who is resident in the ecclesiastical parish concerned’.

7 Care of Churches and Ecclesiastical Jurisdiction Measure 1991, s 16(2).

8 Hill, M, Ecclesiastical Law (third edition, Oxford, 2007)Google Scholar, para 7.34.

9 Care of Churches and Ecclesiastical Jurisdiction Measure 1991, s 1.

10 See Bursell, RDHLiturgy, Order and the Law (Oxford, 1996), p 201Google Scholar.

11 Code of Practice (London, 2006), para 4. The Code was issued by the Clergy Discipline Commission under section 39 of the Clergy Discipline Measure 2003. The Code does not have the force of law but gives guidance for the purpose of the Measure (Code of Practice, paras 2 and 9). However, ‘its provisions will be assumed to be in accordance with best practice’ (ibid, para 9).

12 Code of Practice, para 33.

13 National Institutions Measure 1998, s 1(1).

14 See the Church Representation Rules, r 34(1)(k), emphasis added.

15 Code of Practice, para 233 points out that ‘for the most part the procedure is similar’ in relation to complaints against bishops and archbishops as complaints against priests and deacons.

16 See, for example, the Code of Practice, para 35.

17 See the school example above.

18 For example, the archdeacon.

19 Hill, Ecclesiastical Law, para 6.17, note 65.

20 Clergy Discipline Measure 2003, s 7; rather, it would have to be the basis of proceedings under the Ecclesiastical Jurisdiction Measure 1963.

21 This may be reflected, for example, in cartoons.

22 Code of Practice, para 101. This reflects para 9: ‘Minor complaints should not be the subject matter of formal disciplinary proceedings.’

23 If this amounted to mere gossip, it would affect its weight rather than its actual admissibility.

24 Emphasis in original.

25 Only if the complaint is not dismissed does the bishop consider the various courses open to him under section 12 of the Measure.

26 Code of Practice, para 9 also states that ‘minor complaints should not be the subject matter of formal disciplinary proceedings’.

27 Code of Practice, para 14.

28 Determination dated 9 December 2008, para 7. The tribunal referred to In re H (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563, [1996] 1 All ER 1, HL; In re B (Children)(Care Proceedings: Standard of Proof) [2008] 3 WLR1, [2008] 4 All ER 1.

29 What, however, of an allegation of adultery against a bishop? Is adultery even less inherently likely for someone who has been episcopally ordained?

30 This particular approach is unlikely to be contradicted by any respondent against whom there is a complaint based on adultery, as it is bound to act in the cleric's favour. The complainant cannot contravene the approach, and only the designated officer might raise any doubts about it. However, neither the designated officer nor any tribunal can have access to the Archbishops' List, which might begin to throw some light on the subject.

31 Para 7.

32 This in itself may raise questions of motive. Moreover, condonation (that is, there has been resumption of cohabitation subsequent to the knowledge and detection of the guilt: see Stephens, AJ, A Practical Treatise of the Laws Relating to the Clergy (London, 1848), vol 1, p 785Google Scholar) was formerly a principle of the Church courts. Presumably the fact of any such condonation would still be relevant to the question of seriousness.

33 This is particularly important because the adultery, by definition, cannot be a matter involving the couple alone.

34 On anecdotal evidence, however, it appears that this may not always occur.

35 Code of Practice, para 10 speaks of ‘serious misconduct’ but, within the framework of the Measure and the context of the Code itself, this must mean misconduct that is other than minor or trivial.

36 As to archbishops, Canon C 17 states: ‘The archbishop has throughout his province at all times metropolitical jurisdiction … to correct and supply all defects of other bishops’.

37 Is a complaint against a diocesan bishop that he has failed to investigate or prosecute a cleric for a breach of doctrine, ritual or ceremonial itself ‘an act or omission … relating to matters involving doctrine, ritual or ceremonial’? If it is, it could not be brought under the 2003 Measure.

38 See also s 30(4).

39 Rule 47; it seems that this does not apply to direction hearings, which are dealt with under a different part of the Rules.

40 Practice Direction (Criminal Proceedings: Consolidation) [2002] 1 WLR 2870, [2002] 3 All ER 904, at paras III.28.1 and III.28.2.

41 Rule 51.

42 Issued on 29 March 2006 and available through <www.cofe.anglican.org/about/churchlawlegis/clergydiscipline>, accessed 27 January 2009.

43 Clergy Discipline Measure 2003, s 5.

44 Para 157 of the determination delivered on 23 November 2007.

45 Para 33 of the determination on appeal delivered on 7 April 2008.

46 Determination delivered on 11 November 2008.

47 Para 23 of the determination delivered on 11 November 2008.

48 Para 24.

49 Para 4 and 5 of the determination of penalty delivered on 11 November 2008.

50 The Church Times ran a blog or ‘news question’ regarding this case. According to the issue of 2 January 2009 (no 7607), in answer to the question ‘Do you consider that the 12 year prohibition for the Revd Teresa Davies was fair?’, 251 of those who replied said ‘yes’ and 120 said ‘no’.

51 Determination delivered on 9 December 2008.

52 Determination delivered on 22 December 2008.

53 Paras 33 and 39 of the determination.

54 Paras 28–33 and 35.

55 The tribunal did not address the fact that, once the period for any appeal has passed, the cleric cannot apply for removal of the prohibition but only for its nullification on the ground that new evidence has been discovered or that the proper legal procedures were not followed: Clergy Discipline Measure 2003, s 26(1); Clergy Discipline Rules 2005, r 97(1); Code of Practice, paras 237 and 238. Contrast the position where there is prohibition for a limited period: Clergy Discipline Measure 2003, s 27; Clergy Discipline Rules 2005, r 98; Code of Practice, paras 245 and 246. According to the Daily Telegraph, Canon Tipp commented that ‘forgiveness does not seem to be on the agenda and in a lifetime sentence can never be on the agenda’: see <http://www.telegraph.co.uk/news/newstopics/religion/4127595/Married-priest-who-ran-off-with-his-deputy-questions-life-ban.html>, accessed 27 January 2009.

56 Presumably this was in spite of the fact that the two respondents intend to marry and that this would be bound to impinge on any future ministry.

57 Para 26 of the determination.

58 There is, of course, no published information as to penalties that may have been imposed by consent.

59 This was apparently in relation to the ‘swinging’ conduct of the respondent in Allsop v Davies.

60 In fact, the author met similar surprise among a few clergy attending a CME session some years ago, before the implementation of the Measure.