The Clergy Discipline Rules 2005

• Citation: S.I. 2005/2022
• Sections: 107

Section 1 Overriding Objective

The overriding objective of these rules is to enable formal disciplinary proceedings brought under the Measure to be dealt with justly, in a way that is both fair to all relevant interested persons and proportionate to the nature and seriousness of the issues raised. The rules are, so far as is reasonably practicable, to be applied in accordance with the following principles —

(a) The complainant and the respondent shall be treated on an equal footing procedurally.

(b) The complainant and the respondent shall be kept informed of the procedural progress of the complaint.

(c) Undue delay is to be avoided.

(d) Undue expense is to be avoided.

Section 2 Duty to co-operate

(1) All parties shall co-operate with any person, tribunal or court exercising any function under the Measure in order to further the overriding objective.

(2) Any failure to co-operate by a party may result in adverse inferences being made against that party at any stage of the proceedings.

Section 3 Application of rules

These rules apply to proceedings under the Clergy Discipline Measure 2003 alleging misconduct against a clerk in Holy Orders, other than in relation to matters involving doctrine, ritual or ceremonial.

Section 4 Institution of proceedings against priests or deacons

(1) No disciplinary proceedings under section 10(1)(a) of the Measure may be instituted against priests or deacons except by way of a written complaint made in form 1a in the Schedule, or in a document which is substantially to the like effect containing the information required by sub-rule (2).

(2) A complaint in writing made under section 10(1)(a) of the Measure shall—

(a) state—

(i) the bishop to whom the complaint is being made,

(ii) the full name and contact address, including postcode, of the complainant,

(iii) the name and position held of the priest or deacon about whom the complaint is made,

(iv) why the complainant claims to have a proper interest or is otherwise entitled to make the complaint,

(v) in summary form the nature and details of the acts or omissions alleged to be misconduct under section 8 of the Measure,

(vi) the date or dates of the alleged misconduct,

(vii) the evidence in support that the complainant relies upon, which shall be in writing signed and dated by the maker of the statement in each case.

(b) where the complainant has been nominated by a Parochial Church Council, have attached to it a certified copy of the resolution passed by the Parochial Church Council in accordance with section 10(1)(a)(i) of the Measure,

(c) contain a declaration that the complainant believes the facts of the complaint to be true, and

(d) be signed and dated by the complainant, and be sent or delivered to the bishop.

Section 5 Joint complainants

Where a complaint is signed by two or more persons jointly, they shall nominate one of them to be the correspondent for the purposes of these rules.

Section 6 Form of statements in support

(1) The maker of any statement submitted as evidence in support of a complaint shall indicate which matters in it are within the maker’s own knowledge and which are matters of information and belief, and shall identify the source of any matters of information and belief.

(2) Any such statement in support shall be made in form 3 in the Schedule or in a document which is substantially to the like effect, and shall contain a declaration that the maker of the statement believes the facts in it are true.

Section 7 Submission of statements in support

(1) All written evidence relied upon in support of the complaint shall be sent to the bishop at the same time as the complaint, save as provided for in sub-rules (2) and (3).

(2) Any request to the bishop for permission to send written evidence in support of the complaint after the date of the complaint shall be in writing and shall state the reasons relied upon.

(3) A reasonable period of time for written evidence in support of the complaint to be sent may be allowed by the bishop but this should not exceed 28 days from the date of the complaint.

(4) The complainant shall be notified promptly in writing of any permission or refusal by the bishop to allow written evidence to be sent after the date of the complaint.

Section 8 Complaint out of time

(1) Any application to the President to permit a complaint instituting disciplinary proceedings outside the period prescribed in section 9 of the Measure shall be made in writing in form 1c in the Schedule or in a document which is substantially to the like effect containing the information required for completion of form 1c, and shall set out the reasons why proceedings were not instituted within time.

(2) Within 7 days of receipt of the application the President shall start consultation by providing the respondent with a copy of the complainant’s application, and shall invite the respondent to make written comments within 21 days about the reasons given by the complainant for not instituting proceedings in time.

(3) A copy of any comments received from the respondent shall be supplied by the President to the complainant within 7 days of receipt.

(4) The President shall inform the complainant that within 21 days of receiving a copy of any comments from the respondent the complainant may send written comments in reply to the President.

(5) Having considered any comments of the complainant and the respondent, and if satisfied that there was good reason why the complainant did not institute proceedings at an earlier date, the President may give permission in writing to the complainant for a complaint to be made under section 10(1)(a) of the Measure, and if so, shall specify the time within which the complaint in writing shall be made in accordance with rule 4. The President shall send a copy of the written permission to the respondent and the relevant bishop.

(6) If, having considered any comments of the complainant and the respondent, the President does not give permission for a complaint to be made outside the period prescribed in section 9 of the Measure, the President shall in writing so notify the complainant, the respondent and the relevant bishop.

Section 9 Receipt of complaint

(1) On receipt of a complaint the bishop, or a person authorised by the bishop, shall send the complainant an acknowledgment of the complaint, which states—

(a) the date when proceedings were instituted, which is the date the complaint was received, and

(b) subject to paragraph (c), that the complaint together with the written evidence in support of the complaint, if any, will be referred to the registrar for a written report to be prepared setting out the registrar’s views on—

(i) whether at the date when proceedings were instituted the complainant was entitled under section10 of the Measure to make the complaint, and

(ii) whether there is sufficient substance in the complaint to justify proceeding with it in accordance with the provisions of the Measure.

Where a complaint alleges misconduct which might constitute a criminal offence, the acknowledgment shall state that resolution of the complaint under the Measure may be postponed to await the outcome of police or other investigations.

(2) The bishop, or a person authorised by the bishop, shall refer the complaint and written evidence in support of the complaint to the registrar within 7 days of receipt.

Section 10 Notifying the respondent about the complaint

(1) Subject to sub-rule (2), within 7 days of receiving the complaint from the bishop, the registrar shall notify the respondent in writing—

(a) that a complaint has been made,

(b) that the registrar’s function is limited to scrutinising the complaint in order to produce a written report for the bishop setting out the registrar’s views on—

(i) whether, at the date when proceedings were instituted, the complainant was entitled under section10 of the Measure to make the complaint, and

(ii) whether there is sufficient substance in the complaint to justify proceeding with it,

(c) that no formal response or detailed evidence is required from the respondent at this preliminary stage as the registrar’s function is limited to the matters in paragraph (b) above,

(d) that the respondent will be requested by the bishop to respond to the complaint in detail with evidence in support if it proceeds beyond preliminary scrutiny,

(e) of the date when the registrar expects to submit the written report to the bishop.

(2) For the protection of the interests of a child, the registrar may in exceptional circumstances delay notifying the respondent that a complaint has been made until no later than 42 days after receipt of the complaint.

(3) When notifying the respondent under sub-rule (1), the registrar shall send the respondent a copy or, where sub-rule (4) applies, an edited transcript of the complaint and the written evidence in support.

(4) The registrar may delete from the respondent’s copy of the complaint form and written evidence in support any details which would or may reveal the identity of the complainant, a child or a witness, provided that—

(a) the registrar is satisfied there are exceptional circumstances and that to do so would be in the interests of justice, and

(b) the bishop is immediately notified in writing with an explanation of the registrar’s reasons.

Thereafter, details which would or may reveal the identity of the complainant, a child or a witness as the case may be, shall be withheld from the respondent and shall be erased from any papers sent to the respondent unless and until the bishop has decided not to dismiss the complaint under section 11(3) of the Measure or the President has reversed such a dismissal under section 11(4).

Section 11 Consulting the complainant for clarification

During the course of the preliminary scrutiny of the complaint the registrar shall consult the complainant only for the purpose of clarification of any matter directly related to the complaint. Such consultation should be conducted in writing, but if oral, it shall be recorded by the registrar in written memoranda, and a copy of any correspondence and memoranda shall be sent by the registrar to the respondent and the complainant.

Section 12 Registrar’s written report

(1) Subject to rule 19(1), having scrutinised the complaint, within 28 days of receiving it or within any extended period under rule 13 , the registrar shall send a written report to the bishop setting out the registrar’s views as to—

(a) whether at the date the proceedings were instituted, the complainant had a proper interest to make the complaint, and

(b) whether there is sufficient substance in the complaint to justify proceeding with it under the Measure.

(2) When the report is sent to the bishop, the registrar shall attach to it the complaint and the evidence in support.

Section 13 Registrar extends time for sending the written report

(1) Where the registrar proposes under section 11(2) of the Measure to extend the period of 28 days for the submission of the written report to the bishop, the registrar shall, not later than 21 days after receipt of the complaint, notify the complainant and the respondent of the reasons why an extension is required and the period of extension proposed, and shall invite their views about whether there should be an extension.

(2) Any comments by the complainant and the respondent shall be made within 7 days of notification by the registrar.

(3) If, having consulted the complainant and the respondent, the registrar decides to extend the period of 28 days, they and the bishop must be notified of the new date by which the written report is to be submitted to the bishop.

Section 14 Multiple complaints and the written report

(1) Where the complainant makes more than one complaint against the same respondent, the registrar may prepare one written report dealing with all the complaints referred to the registrar by the bishop.

(2) Where the complainant makes a complaint against two or more respondents, the registrar shall prepare separate written reports in respect of each respondent.

(3) Where two or more complainants make separate complaints against the same respondent in respect of the same alleged misconduct, the registrar may prepare one written report dealing with all the complaints.

Section 15 Dismissal of the complaint by the bishop under section 11(3) of the Measure

(1) If the bishop, after considering the registrar’s report, dismisses a complaint under section 11(3) of the Measure, the bishop shall within 28 days of receiving the registrar’s written report send to the complainant and the respondent written notice of dismissal together with reasons for the dismissal and a copy of the registrar’s report.

(2) The written notice shall explain the complainant’s right to request the President to review the dismissal.

Section 16 President’s review of a dismissal

(1) A request by the complainant to the President for a review of the dismissal shall be made within 14 days of receipt of the notice of dismissal, and shall—

(a) be in writing in form 4 in the Schedule, or in a document which is substantially to the like effect,

(b) set out the reasons for seeking a review of the bishop’s decision, and

(c) be accompanied by a copy of the complaint and the written evidence in support, the registrar’s report, and the bishop’s notice of dismissal.

(2) No new or further evidence may be submitted by the complainant with the request for a review.

(3) The President shall notify the bishop and the respondent that the review has been requested.

(4) Within 28 days of receiving the complainant’s request the President shall notify the complainant, the respondent and the bishop in writing as to whether the President is upholding the dismissal or reversing it, and directing the bishop to deal with the complaint in accordance with section 12 of the Measure.

Section 17 Respondent’s answer

(1) If the complaint is not dismissed under section 11(3) of the Measure, or if the President reverses such a dismissal, the bishop shall—

(a) notify the complainant and the respondent in writing that the complaint has not been dismissed,

(b) provide the complainant and the respondent with a copy of the registrar’s written report unless previously provided under rule 15(1),

(c) send to the respondent a copy of form 2 in the Schedule, and

(d) request the respondent to submit a written answer to the complaint within 21 days using form 2.

(2) The respondent’s answer shall be in form 2 in the Schedule, or in a document which is substantially to the like effect containing the information required for completion of form 2, and shall—

(a) provide the full name, contact address including postcode, and telephone number of the respondent,

(b) state which, if any, matters are admitted and which are contested,

(c) subject to sub-rule (5), be accompanied by any written evidence in support upon which the respondent wishes to rely, plus a copy of any such evidence,

(d) where the respondent admits any misconduct, give details of any matters relied upon by way of mitigation,

(e) contain a declaration that the respondent believes the facts of the answer to be true, and

(f) be signed and dated by the respondent, and be sent or delivered to the bishop, together with a copy.

(3) The maker of any statement submitted as evidence in support of an answer shall indicate which matters in it are within the maker’s own knowledge and which are matters of information and belief, and shall identify the source of any matters of information and belief.

(4) Any such statement in support shall be made in form 3 in the Schedule or in a document which is substantially to the like effect, and shall contain a declaration that the maker of the statement believes the facts in it are true.

(5) The respondent may be granted a further 7 days by the bishop within which to submit any evidence in support.

(6) The bishop on receipt shall by way of notification send to the complainant a copy of the respondent’s answer and evidence in support.

(7) Whether or not an answer is received in accordance with this rule the bishop may proceed to make a determination under section 12(1) of the Measure.

Section 18 Extension of period for bishop to consider complaint under section 12 of the Measure

(1) Where the bishop proposes to extend by such longer period as the bishop considers to be justified in the particular circumstances of the case the period of 28 days for determining which course under section 12 of the Measure to pursue, the bishop shall consult the complainant and the respondent, stating the reasons for the proposed extension and the period of time proposed.

(2) The bishop may from time to time extend the period for determining which course to pursue for such period as appears necessary in the interests of justice, provided the complainant and the respondent are consulted as required by sub-rule (1) each time the bishop proposes to extend the period.

(3) Where the bishop decides to extend the period for determining which course to pursue the bishop shall notify the complainant and the respondent promptly in writing of the extension.

Section 19 Other proceedings

(1) Where a respondent against whom a complaint is made in accordance with rule 4—

(a) is, or is likely to be, subject to disciplinary proceedings in respect of any alleged misconduct during the course of any employment, or

(b) serves in Her Majesty’s armed forces and is, or is likely to be, subject to any proceedings in respect of any alleged misconduct during his or her service in the armed forces, or

(c) has been arrested on suspicion of committing a criminal offence, and is, or is likely to be, subject to criminal proceedings in connection with the arrest, or

(d) is respondent to proceedings for divorce or judicial separation alleging adultery, behaviour such that the petitioner cannot reasonably be expected to live with the respondent, or desertion,

the registrar may, in accordance with rule 13 , extend the period for submission of the written report until 28 days after being notified of the final outcome of those other proceedings or that such other proceedings will not be pursued.

(2) Where the registrar does not extend the period of 28 days under rule 13, the bishop may, in accordance with rule 18 , extend the period for determining which course to pursue until 28 days after being notified of the final outcome of those other proceedings or that such other proceedings will not be pursued.

Section 20 No further action

Where the bishop under section 13(1) of the Measure determines there is to be no further action, the determination shall be in writing, and the bishop shall—

(a) state reasons for taking no further action,

(b) notify the complainant and the respondent that the complainant may refer the complaint to the President for consideration of the bishop’s determination,

(c) send a copy of the determination to the complainant and the respondent.

Section 21 No further action: referral by complainant to the President

(1) The complainant may refer the complaint to the President within 14 days of receiving the bishop’s determination that there is to be no further action.

(2) Any such referral by the complainant to the President shall—

(a) be in writing in form 5 in the Schedule or in a document which is substantially to the like effect,

(b) state the grounds for requesting the President to consider the bishop’s determination, and

(c) be accompanied by a copy of the complaint and of the respondent’s answer with the written evidence in support of each, the registrar’s report, and the bishop’s determination.

(3) Within 7 days the President shall notify the bishop and the respondent that the written referral has been received and send each of them a copy.

(4) No new or further evidence may be submitted to the President for the purposes of consideration of the bishop’s determination.

Section 22 No further action: President’s decision

Within 28 days of receipt of the complainant’s referral, the President’s decision shall be given in writing with reasons and sent to the complainant, the respondent and the bishop, and if the President decides that the bishop’s determination was plainly wrong the President may direct the bishop to pursue such of the courses specified in section 12(1)(b) to (e) as the President considers appropriate.

Section 23 Consent to conditional deferment

Consent by the respondent, given under section 14(1) of the Measure, to a conditional deferment of the complaint shall—

(a) be in writing and be given in form 6 in the Schedule or in a document which is substantially to the like effect, and

(b) be signed and dated by the respondent.

Section 24 Written determination imposing conditional deferment

The written determination to impose a conditional deferment shall contain the bishop’s reasons and set out—

(a) the period of deferment, and

(b) that the complaint and the conditional deferment will be notified to the archbishop and remain on a record maintained by the diocesan registrar for the period of deferment, and

(c) that, if during the period of deferment another complaint in accordance with rule 4 is made against the respondent and is dealt with by attempting to bring about conciliation, or by the imposition of a penalty by consent, or by means of a formal investigation, the recorded complaint may likewise be so dealt with together with the later complaint.

Section 25 Record of conditional deferment

(1) Within 21 days of obtaining the respondent’s written consent to a conditional deferment the bishop must send—

(a) to the complainant and the respondent a copy of the bishop’s written determination, and

(b) to the archbishop a copy of the bishop’s written determination, the complaint, and the respondent’s answer, if any, whereupon the provincial registrar shall note the conditional deferment, and

(c) to the diocesan registrar a copy of the bishop’s written determination, the complaint with evidence in support, and the respondent’s answer, if any, with evidence in support, and the diocesan registrar shall maintain a record of the conditional deferment for such period not exceeding five years as the bishop may determine.

(2) The registrar’s record of the conditional deferment shall not be open to public inspection but shall be made available to diocesan bishops and registrars.

Section 26 Conciliation

(1) Where the bishop directs under section 15 of the Measure that an attempt at conciliation should be made, the bishop shall notify the complainant and the respondent accordingly and invite them to agree to the appointment of the conciliator within 21 days.

(2) Subject to the agreement of the complainant and the respondent under sub-rule (1), the bishop shall propose in writing the name or names of potential conciliators with details of their suitability, experience and qualifications for appointment, and shall invite the complainant and the respondent to indicate within 14 days which names, if any, they would each agree to be appointed. Provided the complainant and the respondent agree on a person to be appointed and the bishop has no reason to question that person’s impartiality, the bishop shall appoint that person as conciliator.

(3) At the time of appointment of the conciliator the bishop shall supply the conciliator with a copy of the complaint and the respondent’s answer, together with the evidence in support of each.

(4) The conciliator may use such conciliation procedures as he or she thinks fit.

(5) The conciliator shall use his or her best endeavours to bring about a conciliation within 3 months, or within any further period he or she allows with the agreement of the complainant and the respondent.

Where the period for bringing about a conciliation is extended, the conciliator shall notify the bishop.

(6) Where a conciliation has been brought about—

(a) The conciliator shall—

(i) reduce the agreed points into writing and obtain the signatures of the complainant and the respondent, and

(ii) submit to the bishop the signed points of agreement and a written report signed by the complainant and the respondent with such recommendations as the conciliator may wish to make.

(b) Within 21 days of receipt the bishop shall notify the complainant and the respondent in writing that the bishop—

(i) accepts the signed points of agreement, and

(ii) that the bishop will pursue any agreed course, provided the bishop could have pursued that course under section 12 of the Measure had the bishop not instead directed an attempt be made to bring about conciliation.

(7) If a conciliation is not brought about but the complainant and the respondent agree that another conciliator should be appointed, the bishop may appoint that other conciliator.

(8) If a conciliation is not brought about, and the complainant and the respondent do not agree to a further period of time under sub-rule (5) or to the appointment of another conciliator under sub-rule (7), the matter shall be referred back to the bishop.

(9) If the complainant and the respondent do not agree to the appointment of a conciliator or to any of the proposed names to be appointed, or if the matter is referred back to the bishop by the conciliator under sub-rule (8) , the bishop shall deal with the complaint under section 12(1)(a), (b), (d) or (e) of the Measure.

Section 27 Penalty by consent

(1) A penalty by consent under section 16 of the Measure may only be imposed in respect of such misconduct alleged in the complaint as the respondent admits.

(2) In addition to resignation by consent under section 16 of the Measure, any of the penalties that may be imposed under section 24 of the Measure upon a finding of misconduct may be imposed by consent under section 16 of the Measure.

(3) Where the bishop considers that the imposition of a penalty might be appropriate, the bishop shall invite the complainant and the respondent to make written representations if they so wish upon the proposed penalty within 14 days.

(4) The respondent’s consent to the proposed penalty must be given in writing in form 7 in the Schedule or in a document which is substantially to the like effect.Subject to sub-rule (5) below, the bishop shall send the respondent written confirmation of the agreed penalty within 7 days of receiving the respondent’s consent.

(5) Where the bishop and the respondent agree that prohibition for life or resignation is appropriate and agree upon a date for it to take effect—

(a) The bishop shall give the respondent written notice that either of them may withdraw from the agreement by notifying the other in writing of the withdrawal within 7 days following the date of the agreement.

(b) At the end of the 7 day period, if neither the bishop nor the respondent has given written notice withdrawing from the agreement the bishop shall send the respondent written confirmation of the penalty of prohibition for life or resignation, as the case may be.

(c) In the case of resignation, no deed or letter of resignation from the respondent shall be required to implement the penalty.

(d) The agreed date for the prohibition or resignation to take effect shall be not later than 3 months after the bishop’s written confirmation.

(6) The bishop shall notify the complainant in writing of any penalty by consent within 14 days of sending the written confirmation to the respondent.

(7) The bishop shall notify the archbishop and the registrar of the diocese in writing of the penalty imposed by consent within 14 days of sending the written confirmation to the respondent.

(8) If the respondent does not consent to the imposition of a penalty or does not agree with the bishop as to the nature of the penalty, the bishop shall direct that the complaint is to be formally investigated in accordance with rule 28.

Section 28 Reference to the Designated Officer for formal investigation

(1) Where the bishop directs under section 12(1)(e) of the Measure that the complaint is to be formally investigated, the bishop shall refer it to the Designated Officer, and shall supply the Designated Officer with a copy of the complaint and the respondent’s answer together with all written evidence in support of each of them, and the registrar’s written report.

(2) Within 14 days of referring the complaint to the Designated Officer the bishop shall give written notice of the referral to the complainant and the respondent.

(3) The complainant and the respondent shall co-operate with the Designated Officer during the investigation, in particular by responding in writing within 14 days (or such extended period as the Designated Officer may allow) to any questions asked by the Designated Officer for the purpose of clarification of the complaint or the respondent’s answer or of the evidence in support of each.

(4) If any new material information is disclosed to the Designated Officer by or on behalf of the complainant or the respondent in the course of the investigation, the Designated Officer shall pass it on to the party who did not disclose it and invite that party to comment within a stated period of time.

(5) The Designated Officer shall investigate the complaint and shall send or deliver a written report to the President within 3 months of the date of the receipt of the documents specified in sub-rule (1).

The time within which the Designated Officer is required to report to the President may be extended for such period as the President deems to be justified in the particular circumstances of the case. Any application for an extension of time shall be made by the Designated Officer in writing to the President.

Section 29 The President’s decision

(1) Within 28 days of receipt of the Designated Officer’s report the President shall decide if there is a case for the respondent to answer and shall send a written copy of the decision to the complainant, the respondent, the bishop and the Designated Officer.

(2) Where there is a case to answer, the President shall refer the case to the tribunal and shall specify in the written decision which allegation or allegations of misconduct are to be determined.

(3) If the President decides that there is no case for the respondent to answer then copies of the President’s written decision with reasons shall be sent to the complainant, the respondent, the bishop and the Designated Officer, and thereafter no further action shall be taken with regard thereto.

Section 30 General

(1) Where a complaint is referred to a tribunal for adjudication, the Registrar of Tribunals—

(a) may hold one or more preliminary hearings to identify the issues and give directions, and shall give notice to the parties of such hearings, and

(b) shall give directions for the just disposal of the proceedings in accordance with the overriding objective.

(2) The Registrar of Tribunals may at any stage refer any matter of difficulty or dispute to the Chair.

(3) Directions may be given or varied at any stage—

(a) at a hearing,

(b) where sub-rule (6) below applies, during a telephone hearing, or

(c) in writing.

(4) At any hearing or telephone hearing the respondent may be legally represented, and the complainant’s case shall be conducted by the Designated Officer or someone duly authorised by the Designated Officer.

(5) Directions may be given or varied—

(a) on the application of the Designated Officer or the respondent, or

(b) on the initiative of the Registrar of Tribunals or the Chair without a hearing.

(6) Where a hearing for directions is likely to last no longer than 30 minutes the Registrar of Tribunals or the Chair, as the case may be, may direct that—

(a) it be conducted by telephone, and

(b) that the Designated Officer and the respondent send in advance of the hearing for directions a written summary of their respective submissions, and send or deliver copies of their submissions to each other.

(7) Any direction given by the Registrar of Tribunals or the Chair under this rule shall be given or confirmed in writing, and a copy sent or delivered to the Designated Officer and the respondent.

Section 31 Form of application

(1) Applications by the respondent for directions on any matter shall be made in writing—

(a) to the Registrar of Tribunals using form 8 in the Schedule, and

(b) a copy shall be sent or delivered to the Designated Officer at the same time as it is sent or delivered to the Registrar of Tribunals.

(2) The respondent shall respond in writing using form 9 in the Schedule to any application made by the Designated Officer, and shall send such response to the Registrar of Tribunals and a copy of it to the Designated Officer.

(3) The Designated Officer shall adapt forms 8 and 9 as appropriate, and shall send or deliver a copy to the respondent at the same as the application or response, as the case may be, is sent or delivered to the Registrar of Tribunals.

Section 32 Setting aside or varying directions given without a hearing

Where an order has been made without a hearing giving or varying directions under rule 30(5) on the initiative of the Registrar of Tribunals or the Chair, a party may apply within 14 days to the Registrar of Tribunals or the Chair, as the case may be, to have it set aside or varied, and the order shall notify the parties that they may make such an application.

Section 33 Matters which may be covered in directions

(1) Directions may be given in respect of all procedural matters and in particular—

(a) for the exchange of witness statements (notwithstanding that the complainant and the respondent may already have respectively supplied statements in support of the complaint form and the respondent’s answer),

(b) for the exchange of copies of documents intended to be relied upon at the final hearing,

(c) to direct the complainant and the respondent to disclose and produce at or before the hearing of the complaint any specified documents in their possession or control which may reasonably be required by another party,

(d) to permit written questions to be put by one party to the other, and to require those questions to be answered by the other party,

(e) in relation to any expert evidence, including the number of expert witnesses,

(f) to exclude evidence that would be irrelevant or unnecessary, or which should otherwise be excluded in the interests of justice in accordance with the overriding objective,

(g) to direct any party to prepare a written outline argument and to send or deliver a copy of it to the Registrar of Tribunals, the Chair, and to the other party, together with photocopies of any authorities relied upon,

(h) to provide for the preparation of bundles of documents for a hearing, and for them to be sent or delivered to the tribunal and each party,

(i) to require the attendance of any person at the hearing of the complaint for the purpose of—

(i) giving evidence, or

(ii) producing documents for inspection,

(j) to order two or more complaints against the same respondent to be heard on the same occasion,

(k) to order complaints against more than one respondent to be heard on the same occasion,

(l) to order any part of any proceedings to be dealt with separately.

(2) A direction may be given that if a document has not been disclosed to the other party, that document may not be relied upon at the hearing of the complaint unless the Chair gives permission.

Section 34 Production appointment

(1) The Registrar of Tribunals or the Chair may give notice to a person to attend a production appointment to provide reasons as to why that person should not be ordered to produce any documents specified or described.

(2) Any notice under sub-rule (1) shall be in form 10 in the Schedule or in a form which is substantially to the like effect, and—

(a) shall be given only where—

(i) the production of the documents specified or described in the notice appears to the Registrar of Tribunals or the Chair to be relevant and necessary for dealing fairly with the complaint, and

(ii) the person to whom the notice is given has been sent in writing a request by a party to produce the documents and has failed to do so within a reasonable time, and

(b) shall state that the person to whom the notice is directed need not attend the appointment if that person does not object to producing the documents specified or described or if that person sends any objections in writing to the Registrar of Tribunals or Chair no later than a stated time before the appointment.

(3) A person attending a production appointment pursuant to a notice under sub-rule (1) shall be permitted to be represented at the appointment, and to make representations objecting to the production of any documents in question.

(4) A person who received notice under sub-rule (1) may be ordered at the production appointment to produce for inspection by a party within a stated time any documents specified or described.

(5) Any order under sub-rule (4) shall be in form 11 in the Schedule or in a form which is substantially to the like effect, and—

(a) shall be made only where the production of the documents specified or described in the order appears to the Registrar of Tribunals or the Chair to be necessary for dealing fairly with the complaint, and where it appears just in all the circumstances to make such an order,

(b) shall state—

(i) that the person to whom the order is directed must obey the order, and

(ii) failure to do so may be a contempt of the tribunal, and

(iii) that the person to whom the order is directed may be sent to prison or fined, or both, if the order is not obeyed.

Section 35 Witness statements for use at a hearing before a tribunal

(1) A witness statement is a written statement signed by a person and containing evidence which that person would be allowed to give orally.

(2) A witness statement must indicate—

(a) which matters in it come from the witness’s own knowledge, and which are matters of information or belief, and

(b) the source of any matters of information or belief.

(3) A witness statement intended for use before a tribunal must contain at the end a declaration of truth in the following form—

I believe that the contents of this witness statement are true

and shall be dated and signed by the witness.

(4) A party wishing to rely on a witness statement at the hearing of the complaint shall call the witness to give oral evidence unless—

(a) the parties agree that the witness statement may be put in evidence, or

(b) the witness has died, is too ill to attend or is overseas, or

(c) the Registrar of Tribunals or the Chair directs otherwise.

(5) Where a witness is called to give oral evidence the witness statement of the witness shall stand as the witness’s evidence in chief unless the Chair directs otherwise.

(6) A witness giving oral evidence at a hearing may with the permission of the Chair—

(a) amplify the witness statement, and

(b) give evidence in relation to new matters which have arisen since the witness statement was made.

(7) Any witness who gives oral evidence may be cross-examined.

(8) If a party exchanges a witness statement with another party but does not—

(a) call the witness to give evidence at the hearing, or

(b) put the statement in evidence without calling the witness,

the other party may put the witness statement in evidence without calling the witness to give oral evidence.

Section 36 Expert evidence

(1) No party may rely upon expert evidence without the permission of the Registrar of Tribunals or the Chair.

(2) If permission is given for expert evidence to be relied upon,

(a) the permission must be in respect of a named expert or a specific subject, and

(b) the evidence must be reasonably required for the purposes of the proceedings.

(3) An expert witness must be independent from the complainant and respondent, and at all times is under an overriding duty to help the tribunal on the matters within that person’s expertise.

(4) Expert evidence is to be set out in a written report, and the report shall contain—

(a) details of the expert’s qualifications and experience,

(b) details of the information provided and the questions asked of the expert for the preparation of the report,

(c) where there is a range of opinion on the matter dealt with in the report,

(i) a summary of the range of opinion,

(ii) reasons for the expert’s own opinion,

(d) a statement that the expert understands his or her duty to the tribunal, and has complied with that duty.

(5) Expert evidence cannot be relied upon without permission from the Chair, unless a copy of the report has been sent or delivered to the other party in accordance with directions given under rule 33.

(6) Where both parties wish to submit expert evidence on a particular issue, the Registrar of Tribunals or the Chair shall, save in exceptional circumstances, direct that the evidence on that issue is to be given by a single joint expert only.

(7) If the parties cannot agree who should be the single joint expert, the Registrar of Tribunals or the Chair may—

(a) nominate the expert from a list presented by the parties, or

(b) direct that the expert be nominated in another specified manner.

(8) Where a single joint expert is to be used, the parties should try to agree joint instructions, failing which each party may give instructions to the expert provided that at the same time a copy of those instructions is sent to the other party.

(9) A party may put written questions to any expert for the purpose of clarifying the expert’s report.

An expert’s answers to written questions are to be treated as part of the expert’s report.

Where an expert does not answer a written question the Registrar of Tribunals or the Chair may direct that part or all of the expert’s evidence may not be relied upon.

(10) An expert may not give oral evidence at a hearing unless permission has previously been given by the Registrar of Tribunals or the Chair.

Section 37 Appointment of members of the tribunal

(1) Within 14 days of being notified under section 22(2) of the Measure of their identity, the respondent may make written representations to the President about the suitability of any of the proposed members of the tribunal which will hear the complaint, and the President shall not appoint any of the members until such representations, if any, have been received and considered.

(2) If the President is not satisfied that a proposed appointee is impartial, the President shall propose an alternative person, and shall afford an opportunity to the respondent to make representations about that person within 14 days of being notified of that person’s identity.

Section 38 Fixing the date and place of the hearing of the complaint

(1) The Registrar of Tribunals may direct the parties to provide time estimates of the likely length of the hearing of the complaint.

(2) Thereafter, as soon as may be expedient, in consultation with the Chair and with due regard being paid to the convenience of the complainant, the respondent, the Designated Officer and the witnesses, the Registrar of Tribunals shall fix the date, time and place for the hearing of the complaint, and shall give not less than 14 days written notice of the same to the complainant, the respondent and the Designated Officer.

(3) The Registrar of Tribunals or the Chair may vary the date, time and place of any hearing, and written notice of the variation shall be given by the Registrar of Tribunals to the complainant, the respondent and the Designated Officer.

Section 39 The tribunal and the overriding objective

The tribunal shall in accordance with the overriding objective in rule 1—

(a) conduct the hearing in the manner it considers most appropriate to the issues before it and to the just handling of the complaint generally,

(b) set a suitable timetable for the hearing.

Section 40 Tribunal hearing normally to be in private

The hearing shall be in private except where—

(a) the tribunal is satisfied that it is in the interests of justice to have a hearing in public, or

(b) the respondent so requests,

in which case the tribunal shall direct that the hearing shall be in public, but during any part of the proceedings the tribunal may exclude such person or persons as it may determine.

Section 41 Power to adjourn

The hearing may be adjourned from time to time if necessary.

Section 42 Absence from a hearing

The Registrar of Tribunals or the Chair may proceed with a hearing notwithstanding the absence of the complainant or the respondent, provided the Registrar of Tribunals or the Chair is satisfied that the absent person has had notice of the hearing.

Section 43 Admissions by the respondent

If, after referral of the complaint under rule 29 , the respondent makes an admission before or at the hearing, the tribunal may make a finding of misconduct on the basis of that admission without considering any or any further evidence, and the tribunal may then proceed under section 19 of the Measure.

Section 44 Entitlement to call evidence

At the hearing, subject to rules 35, 36 and 39, the complainant and the respondent are entitled to give evidence, and the Designated Officer and the respondent are entitled to call witnesses, to question any witnesses who give oral evidence, and to address the tribunal on evidence, the law and on the issues generally.

Section 45 Oral evidence

Oral evidence shall be given on oath or solemn affirmation, and shall be recorded.

Section 46 Tribunal may require personal attendance of witness

The tribunal may at any stage of the proceedings require the personal attendance at the hearing of the author of a witness statement or an expert who has produced a report.

Section 47 Attendance at a hearing in private

Where the hearing is held in private, in addition to members and staff of the tribunal, the following may attend—

(a) the complainant and the respondent,

(b) the legal representatives of the respondent,

(c) the Designated Officer, any supporting staff, and any person authorised by the Designated Officer to conduct the case for the complainant,

(d) the bishop,

(e) the relevant archdeacon,

(f) any other person with the tribunal’s permission.

Section 48 Power to exclude from hearing

The tribunal may exclude from the hearing any person who threatens to disrupt or has disrupted the hearing or has otherwise interfered with the administration of justice.

Section 49 Tribunal may order identity not to be published

The tribunal may order that the name and any other identifying details of any person involved or referred to in the proceedings must not be published or otherwise made public, if satisfied that such an order—

(a) is desirable to protect the private life of any person, or

(b) is desirable to protect the interests of any child, or

(c) is otherwise in the interests of the administration of justice.

Section 50 Pronouncement of the tribunal’s determination of the complaint

(1) The determination of the complaint shall be according to the opinion of the majority of the members of the tribunal.

(2) The Chair shall pronounce the tribunal’s determination of the complaint in public—

(a) at the end of the hearing, or

(b) at a later date when the Chair may sit alone for that purpose.

(3) The tribunal’s determination shall be recorded in writing with reasons, and shall set out the opinion of the majority of its members together with the minority opinions if any, and shall be signed by each member.

(4) The tribunal may omit from the written determination the name and any other identifying details of any person, if satisfied that such an order—

(a) is desirable to protect the private life of that person, or

(b) is desirable to protect the interests of any child, or

(c) is otherwise in the interests of the administration of justice.

(5) A copy of the tribunal’s written determination shall be sent to the complainant, the respondent, the Designated Officer, the bishop, the registrar, and the provincial registrar.