A Fair-Minded and Informed Observation of Cooper v Gair

by Philip Jones

Decision of a bishop’s disciplinary tribunal given in November 2008, Chancellor Rupert Bursell presiding.  Unreported, but a copy of the decision is available on the website of the Church of England, accessed 18th June 2012.

S.22 of the Clergy Discipline Measure 2003 contains provisions that are designed to ensure the impartiality of disciplinary tribunals:

(1) the members of the tribunal must be drawn from outside the diocese  whence the case originated

(2) the President of Tribunals must be ‘satisfied that there is no reason to question the impartiality’ of any member of the tribunal

(3) the accused clergyman has the right ‘to make representations as to the suitability’ of each member of the tribunal.

S.23 of the 2003 Measure contains similar provisions concerning the Vicar-General’s Court, which decides disciplinary complaints against bishops and Archbishops.

Provision (1) above was introduced to avoid a repetition of the unfortunate case of Burridge v Tyler (1992) 1 All England Reports 437.  A clergyman, Tyler, was convicted by the consistory court of his diocese of adultery with two women of his parish.  One of the assessors who decided the case was a friend both of Tyler and of one of the women and her husband.  Before the case came to trial, the assessor even visited Tyler on two occasions to discuss the case, and formed a preliminary view of his guilt.

The Court of the Arches was therefore obliged to order a retrial, at considerable expense to the Church.  It made the obvious point that, if disciplinary cases were to be determined within the diocese, ‘it is highly likely that clerical assessors will inevitably have some acquaintance with an accused [clergyman]’ (p.439).

Provision (1) therefore seeks to protect the tribunal from any lack of impartiality arising from personal acquaintance or connection between the tribunal members and the parties to the case and their witnesses.  But a tribunal’s impartiality may be endangered by other factors than personal acquaintance.

Provision (2) may also reflect the experience of Burridge v Tyler.  It emphasises the impartiality of the individual members of the tribunal, but not of the tribunal as a whole.  The assumption is that, if each member is impartial, the full tribunal must also be impartial.

However, it could be argued that impartiality may sometimes require a certain balance or composition of members of a tribunal.  Employment tribunals normally include one trade union representative and one representative of employers’ organisations.  It is thought that representation of the interests of both sides of the employment relationship enables employment tribunals to decide disputes impartially.

The President of Tribunals is required to satisfy himself that the tribunal members are impartial, but impartiality per se is determined by law, not by the President.  Case law suggests that impartiality is lost if

‘a fair-minded and informed observer … would conclude that there was a real possibility that [the tribunal] might be … biased’ (AWG Group Ltd v Morrison (2006) 1 Weekly Law Reports 1163, Court of Appeal, p.1167). 

This test of apparent bias therefore resembles a ‘reasonable bystander’ test.

Provision (3) refers to the suitability of tribunal members.  ‘Suitability’ is, of course, a broader criterion that impartiality.  A tribunal member can be unsuitable even if impartial.  The Code of Practice issued under the 2003 Measure suggests that the President should accept an objection to a tribunal member based on unsuitability if the objection has ‘any substance’ to it (para 187). 

In Cooper v Gair, the Rev Mr Gair was accused of sexual misconduct.  A disciplinary complaint was made by the archdeacon, who was a woman (Ms Cooper).  One of the clerical members of the disciplinary tribunal was also a woman. 

Mr Gair informed the President of Tribunals that he ‘[held] to the integrity that does not recognise the validity of women’s priestly orders’, in other words he was opposed to women priests.  He therefore requested that

(1) both the clerical members of the tribunal (though not the lay members) should be male and

(2) one of them should be a member of a priestly society that shared his views on female ordination.

When pressed to explain the reason for this request, Mr Gair stated

‘I have yet to meet one woman in orders who accepts my integrity in the matter of believing her orders invalid … I cannot believe that my view on this would fail to aggravate her impartiality …’.

The tribunal acknowledged, correctly, that it was a public authority under the Human Rights Act, and therefore subject to Article 6 (the right to an independent and impartial tribunal).  However it rejected Mr Gair’s request:

‘the tribunal as a whole, and the [woman priest member of the tribunal] in particular … gave very careful preliminary consideration to the possible impartiality [sic – presumably ‘lack of impartiality’] suggested by Mr Gair … we were each satisfied that neither the tribunal as a whole nor any individual member lacked any impartiality’.

This conclusion indicates that the tribunal failed to apply the proper test of impartiality, as described in the case law cited earlier.  Of course, the tribunal members were satisfied in their own minds that they were impartial.  We all think that we are impartial.  However, the proper test is what a fair-minded and informed observer would think, not what the tribunal itself thinks. 

It is argued that, if the correct test had been applied, a different conclusion would have followed.  An informed observer would know that

(1) female ordination is a controversial and divisive issue in the Church of England, a cause of ill-feeling, and has been so for many years, and

(2) opponents of female ordination are a small minority.

If a woman priest sits in judgment on a clergyman who is a known opponent of women priests, a real possibility of bias must occur to a fair-minded observer.  That is not to accuse the woman priest of actual bias.  The mere possibility of bias in the mind of an observer is enough.

Indeed there is a real possibility of bias on the part of any tribunal appointed to judge an opponent of women priests, because he belongs to a small and unpopular minority.  It is therefore argued that the requirement of impartiality demands that a tribunal appointed to judge such a person should include at least one member who is also a known opponent of female ordination (as Mr Gair requested).

The Code of Practice suggests that, where a disciplinary case concerns a person from a ‘minority ethnic background’, the tribunal should include ‘at least one member … from a similar ethnic group or background’ (para 186).  There is also a general obligation to be ‘sensitive to relevant gender and ethnic backgrounds’.  This wording suggests that an accused woman priest would be entitled to insist that another woman priest be appointed to the disciplinary tribunal.  However, no similar allowance is made for an opponent of female ordination. 

The only reference to the women priests controversy in the clergy discipline regime would seem to be in the Code of Practice, which provides that the diocesan bishop ‘may’ consult the provincial episcopal visitor (or ‘flying bishop’) if the accused clergyman is from a parish that is under the visitor’s oversight (para 95).