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Archdeacon of Cheltenham v Bland A Sledgehammer to crack a nut
Published online by Cambridge University Press: 31 July 2008
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Before its enactment, the Ecclesiastical Jurisdiction Measure 1963 experienced a stormy passage during the debates in Church Assembly, being roundly attacked as unnecessarily complex and unwieldy by Garth Moore, who represented the University of Cambridge and was at that time Chancellor of the Dioceses of Durham, Gloucester and Southwark. In view of this, it is ironic that the first case under the disciplinary sections of that Measure should have occurred in the Diocese of Gloucester and should have been heard at first instance by Moore, sitting with four assessors, in July 1969.
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2 See Briden, T. and Hanson, B., Moore's Introduction to English Canon Law (3rd edn, London 1992), p 113Google Scholar: [W]hen [the reader] turns to [the Ecclesiastical Jurisdiction Measure 1963]. designed very largely to simplify an outdated and complicated system, he will find, in place of the old system, a new one in many respects so cumbersome and unpractical that it is doubtful whether, in some of its aspects, any attempt will be made to use it more than the one time necessary to convince even its authors of its unserviceability for many of the purposes for which it was designed.
3 According to the examination in chief of Haynes, John Douglas, Transcript of Evidence, p 8.Google Scholar
4 Proceedings under the Measure are commenced b a complaint lodged with the diocesan registrar. Unless this is dismissed by the bishop it is referred to an examiner, who considers both written and oral sworn evidence. At this stage, if the examiner finds that there is substance to the complaint, the accused may ask the bishop to pronounce a censure by consent, or the matter may proceed to trial in the consistory court. A promoter is appointed, who sets out the case against the accused in articles charging the offence or offences specified by the examiner'. The case is heard by the diocesan chancellor, sitting with four assessors: see The Ecclesiastical Jurisdiction (Discipline) Rules 1964, SI 1964/1755, rr 3–15.
5 Sub nom Bland v Archdeacon of Cheltenham [1972] Fam 157, [1972] 1 All ER 1012, Ct of Arches. Sitting with the deputy dean were Canon F.C. Tindall, Prebendary F.A. Piachaud, Anthony Cripps QC and Michael Argyle QC.
6 Transcript of Evidence, p 10.Google Scholar
7 Pleadings, p 6.Google Scholar
8 Transcript of Evidence, p 1.Google Scholar
9 [1972] Fam 157 at 165B, [1972] 1 All ER 1012 at 1017d.
10 See eg Under Authority, The Report of the General Synod Working Party reviewing Clergy Discipline and the working of the Ecclesiastical Courts (Church House Publishing 1996), pp 2–4, 65.Google Scholar
11 Transcript of Evidence, p 2; [1972] Fam 157 at 161E–H, [1972] 1 All ER 1012 at 1014g, h.
12 Pleadings, p 63Google Scholar. The duplicated volume entitled Pleadings contains not only the Articles, the Answer to the Articles, a Request for Further and Better Particulars and the Notice of Appeal, but also the Transcript of the Summing Up of the Chancellor.
13 On the former point, see Bursell, Rupert D. H., Liturgy, Order and the Law (Clarendon Press 1996), p 139, n 73Google Scholar, and on the latter, see the Submission of the Clergy Act 1533, s 7. Moreover, according to Lord Westbury in Bishop of Exeter v Marshall (1868) LR 3HL 17 at 53–56, for custom to be operative as law it must have been ‘continued and uniformly recognised and acted upon by bishops of the Anglican Church since the Reformation’.
14 [1972] Fam 157 at 166A, B, 1 All ER 1012 at 1018a.
15 Ibid at 166B, 1018a, b.
16 Transcript of Evidence, pp 22–24.Google Scholar
17 Ibid, pp 75–80.
18 Ibid, p 54.
19 Pleadings, p 71.Google Scholar
20 Transcript of Evidence, pp 34f.Google Scholar
21 Pleadings, pp 73f.Google Scholar
22 Ibid, pp 58f.
23 [1972] Fam 157 at 162D, 1 All ER 1012 at 1015d.
24 [1972] Fam 157 at 163C, [1972] 1 All ER 1012 at 1015j.
25 Pleadings, p 18Google Scholar. The letter is quoted verbatim in the transcript of the chancellor's summing up.
26 Ibid, p 19. See preceding footnote.
27 Ibid, p 21.
28 Ibid, p 23f.
29 Ibid, p 32.
30 Ibid, pp 33f.
31 Ibid, p 51.
32 Ibid, pp 54f.
33 Transcript of Evidence, p 57Google Scholar. The matters identified were the first three letters under the fifth offence, and the first item of behaviour in each of the sixth and eighth.
34 Ibid, p 58.
35 Ibid, p 60.
36 [1972] Fam 157 at 168E, [1972] 1 All ER 1012 at 1020c, d.
37 [1972] Fam 157 at 170F–H, [1972] 1 All ER 1012 at 1021h–1022b.
38 [1972] Fam 157 at 168E, [1972] 1 All ER 1012 at 1020c.
39 Pleadings, pp 81 f.Google Scholar
40 [1972] Fam 157 at 170F–H, [1972] 1 All ER 1012 at 1021h–1022b.
41 The case proved to be a public relations failure too. The editorial in the Evesham Journal & Four Shires Advertiser, 7 08 1969, p 10Google Scholar, contains a trenchant attack on the proceedings, of which what follows is a short extract: ‘The sentence of deprivation imposed on the Rector of Buckland is very harsh. It is a pretty poor outlook for parsons if they must please everybody or get out, and a little eccentricity has to bring down the awful penalty of deprivation. What man of character, of soul, of intellect, will want the job at that price? […] The consistory court of the Bishop of Gloucester has used the full force of a quasi-inquisitorial steam-hammer to crack an eccentric. […] This whole consistorial episode has been clumsy, unpleasant and unnecessary.’
42 The Report, Hawker (Under Authority, The Report of the General Synod Working Party reviewing Clergy Discipline and the working of the Ecclesiastical Courts (Church House Publishing 1996))Google Scholar, at the time of writing under consideration by the General Synod, advocates a Clergy Discipline Tribunal in place of the present consistory court and Court of Ecclesiastical Causes Reserved jurisdictions, together with a greatly simplified procedure and a more practical system of penalties. Even here, however, the fundamental question of the nature of the proceedings has not been squarely faced.
43 This is a strange complaint for him to have made, since he could, and indeed should, have had before him the witness affidavits which had been prepared for the hearing before the examiner, as well as the examiner's notes of the cross-examinations.
44 Transcript of Evidence, p 2.Google Scholar
45 Ibid, p 3.
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