Armstrong v Robinson: The Cares of Office
by Philip Jones
Decision of the Bishop’s Disciplinary Tribunal, Diocese of Chester, August 2008. Unreported, but the transcript of the decision is available on www.ecclaw.co.uk, the informative website of Mr Mark Hill QC, accessed 12th April 2012.
S.8 of the Clergy Discipline Measure 2003 identifies three species of misconduct by clergy, as follows:
(1) doing any act in contravention of the laws ecclesiastical, or failing to do an act required by the laws ecclesiastical (i.e disobedience to lawful authority)
(2) ‘neglect or inefficiency in the performance of the duties of … office’
(3) unbecoming or inappropriate conduct.
Thus, in order to succeed, a disciplinary complaint under the Measure must fall fairly and squarely into at least one of these three boxes.
Canon Robinson appointed as a ‘youth worker’ in his parish a man who had been convicted of manslaughter, imprisoned and later released on licence (para 1). As a youth worker, the man would obviously have had close contact with children.
However, Canon Robinson did not obtain ‘clearance’ from the Criminal Records Bureau (CRB) before appointing the youth worker (para 11). When the conviction was discovered, he then ignored advice to dismiss him. When the parochial church council (PCC) resolved that the youth worker be dismissed or suspended pending the outcome of a ‘risk assessment’, Canon Robinson attempted to reinstate him.
The diocesan child protection adviser brought a complaint against Canon Robinson (para 4). The complaint was one of negligence or inefficiency in the performance of the duties of his office (box (2) above).
Particulars of the supposed neglect included ‘failing to prioritize the well-being of children’ (para 24), also ‘failing to appreciate the potential relevance of [the youth worker’s] conviction’ (para 25). The Canon was also accused of ignoring the Church’s policies and guidance on the protection of children (para 109).
It was acknowledged that, although the youth worker was a convicted killer, there was no evidence that he constituted a risk to children (para 6). No child had been hurt in any way as a result of his appointment.
The Tribunal found that parts of the Church’s child protection guidance were inconsistent with each other, to a degree which was ‘markedly unhelpful’ (para 40). Also, the guidance was not expressed in mandatory terms (112). The Bishop himself had said that he could only ‘offer advice’ to Canon Robinson and his PCC on the matter (para 68).
Above all, the child protection guidance lacked the force of law (para 110). No law required the Church authorities to issue such guidance. No law required Canon Robinson to follow it, or even to consider it. The Tribunal admitted that ‘there is no prescribed legal mechanism for the transition of such child protection policies into legal duties’ (para 120).
Yet the Tribunal still found Canon Robinson guilty. It held that his cure of souls brought duties towards children and young people, which included observing the child protection guidelines. By neglecting to follow these guidelines, Canon Robinson neglected his duty (para 120).
The Tribunal also held that, for the purposes of the Clergy Discipline Measure, duties of office ‘are not restricted to offences against ecclesiastical law (para 117) … the phrase [in s.8] should be read broadly (para 118) … The matter [of duty] will be fact-sensitive …’. Thus Canon Robinson could be guilty of neglect of duty, even though the duty was not a duty under ecclesiastical law.
These conclusions strongly suggest that Canon Robinson’s ‘duty of office’ resembled a common law duty to take care. His neglect of that official duty corresponded to breach of a common law duty.
In the case of Bland v Archdeacon of Cheltenham (1972) 1 All England Reports 1012, the Court of the Arches specifically disapproved the equation of neglect of duty with breach of a common law duty of care. It held that
‘This comparison of ‘neglect of duty’ with negligence at common law was unnecessary and irrelevant and was likely to confuse and mislead … A duty to take reasonable care was not the duty which [the Rev Mr Bland, the defendant in the case] had to perform and failure to perform that duty was not the offence charged.’ (p.1015)
The Bland case was, of course, decided before the 2003 Measure. Clergy discipline was formerlyregulated by the Ecclesiastical Jurisdiction Measure 1963. The Tribunal concluded that the 2003 Measure introduced a new concept of neglect of duty, with the consequence that Bland is no longer good law (para 117).
This is hard to accept. The 1963 Measure referred to ‘serious, persistent or continuous neglect of duty’ (s.14(1)). The 2003 Measure refers to ‘neglect or inefficiency in the performance of the duties of … office’. This wording suggests that the 2003 Measure lowered the threshold of neglect, in two respects:
(1) a clergyman can be guilty of misconduct, even if the neglect is not serious or persistent and
(2) an inefficient perfomance of a duty is misconduct, as well as complete failure to perform a duty.
However, while it does broaden the concept of neglect, the Clergy Discipline Measure does not alter the concept of duty in any way. There is nothing in the 2003 Measure which suggests that the ‘duties’ which a clergyman is required to perform efficiently are any different from those referred to in the Ecclesiastical Jurisdiction Measure and discussed in Bland. These duties remain duties of office imposed by ecclesiastical law, not a duty to take care imposed by secular common law.
The Tribunal’s interpretation also does some violence to the word ‘performance’ in the 2003 Measure. ‘Performance’ denotes a positive and specific act. A duty to take care is non-specific and, as the Tribunal said, fact-sensitive. It is owed and discharged, rather than performed. It is also negative in character, being concerned to avoid harm rather than to do good. It is slightly absurd to say that clergyman ‘performs’ a duty to take care that his appointees are suitable to work with children.
A clergyman may well owe a duty of care to his parishioners (and their children), and may act in breach of this duty. However, that is a matter for the secular civil court to decide, not the ecclesiastical court. In this case, of course, Canon Robinson would have had no common law liability, because no child had suffered any harm.
A disturbing feature of this decision is the suggestion that clergy may be guilty of misconduct merely for disregarding advice or ‘guidance’, even if this has no legal basis whatsoever.
Several recent Measures empower the House of Bishops, and other Church authorities, to issue guidelines, codes of practice etc on a particular matter, to which others are required to ‘have regard’. If the child protection guidance had been issued under such a statutory power, it could have been argued that Robinson was guilty, not of neglect of duty, but of ‘failing to do [an] act required by the laws ecclesiastical’ (box (1) above). However, as the Tribunal recognised, the child protection guidance was not issued under any statutory power, so Robinson could not have been charged with this misconduct.
It may be that the Canon acted rashly in employing a convicted killer and in disregarding advice. The anxiety of the Church authorities is understandable. However, obstinacy and poor judgement do not per se amount to misconduct under the 2003 Measure. If clergy are to be compelled to follow the child protection guidance, the obvious course is to amend the law to impose such a legal requirement on them.