The letter of the Bishop of Durham, 13 July 2016, and replies
FROM THE BISHOP OF DURHAM TO THE GEORGE BELL GROUP
13 JULY 2016
Dear Sirs and Madam,
Your letter of March 19 raised a number of questions regarding the Church’s handling of the George Bell case. I am aware that as a group you have found our decision to settle a civil claim – and publicly say so – very difficult and have articulated your reasons for this both in various statements and other public forums including your website. This letter seeks to respond to some of the issues raised including those being circulated in a letter to Synod members.
Lessons Learned Review
It is worth noting at the outset that we recognise no procedure is ever perfect. This is why our guidelines provide for the commissioning of “lessons learned” reviews at the end of complex cases involving allegations of sexual abuse. These reviews were commissioned in the case of Bishop Peter Ball and Bishop John Sattherwaite and we have recently announced we will be commissioning a lessons learned review in the Bishop George Bell case
Some legal misconceptions
We recognise the immense frustration you feel about not being able to review the primary evidence relied on in reaching the settlement, and have of course read the legal opinion published on your website by two of your number, one retired county court judge, and one QC still in practice, arguing that we can and should disclose the evidence.
All those among your number will of course appreciate the necessity of relying on up-to-date law, and because of that necessity, we are not able to accept the conclusions of the opinion since it is founded on the Sexual Offences (Amendment) Act 1992 as it stood prior to its amendment by the Youth Justice and Criminal Evidence Act 1999 with effect from 2004. For the last 12 years, the Act has conferred protection on those alleging non-statutory offences as well as the statutory offences mentioned in the opinion, and has provided protection from ‘jigsaw identification’ (where members of the public can piece together clues about a complainant’s identity) in all cases where relevant offences are alleged, as well as in cases where a person is formally accused. It therefore remains the case that, in the words of the Act, “no matter related to [the person against whom the offence is alleged to have been committed] shall be included in any publication if it is likely to lead members of the public to identify that person as the person against whom the offence is alleged to have been committed”. As you will understand, extreme caution is required, particularly in view of the information already in the public domain. It worth stressing that although Carol has shared some details publicly, she has not waived confidentiality in those she has not shared.
Quite apart from the restrictions imposed by the 1992 Act, we remain mystified how you can believe that we could disclose documents provided by Carol’s solicitor in 2014. At that time, the Practice Direction on Pre-action Conduct still provided that documents provided by one party to another must not be used for any purpose other than resolving the matter, unless the disclosing party agrees in writing. As Mr Pardoe and Mr Browne point out elsewhere in their opinion, changes to the law are not retrospective, so we do not believe that the later change allows us to disclose documents given to us in confidence on the basis of the law as it then stood. We would agree that the letter of claim is not protected by the Civil Procedure Rules, but since its contents are protected by the 1992 Act, this makes little difference.
Breaches of confidence
On a wider point, it is singularly unattractive to suggest that because there might be no legal consequences to breaching Carol’s confidence, the Church should simply provide sensitive material to a group of individuals with a keen interest in but no connection with the case. The Church has a wider duty to Carol than that: even were the Bell Group’s analysis of the law correct. She has already expressed herself hurt by the campaign to “clear his name” as it implies that she has not been believed.
It would be quite wrong for us to breach the complainant’s confidentiality. She has chosen to speak (anonymously, and without giving away a significant number of details) to a journalist following a number of public statements by members of the Bell group and others which she felt questioned her credibility. She has found this very hurtful. The question of transparency (or rather the complaint that we are not being transparent) has to be balanced both with the fact we cannot give details which would enable anyone to identify Carol as it would be unlawful for us to do so and with the moral duties we have to safeguard the deeply personal information which survivors of abuse share in confidence.
As a result, we cannot in all conscience bow to pressure to disclose any further evidence or details of the claim. It is in many ways regrettable that we cannot, since it is clear from the analysis in your review and in other documents that you and other members of the public are labouring under a number of misconceptions which we cannot correct without risking disclosure of Carol’s identity. All we can do is to remind you that not everything you read in the press is as accurate in points of detail as it might be. We can also say that having read Canon Carey’s statement and considered the other points made, we remain of the view that it was right to settle the claim.
An informed decision
The decision to settle the claim against Bishop Bell was taken by a core group whose role was to respond to the case. Responding to Serious Situations provide further information on core groups https://www.churchofengland.org/media/2254740/responding%20to%20serious%20situations.pdf
Both legal and medical advice was taken before the decision was made to settle the claim. There were a number of lawyers involved in the core group including a very experienced practitioner in the field of civil claims relating to child abuse
The clear legal advice received was that on the balance of probabilities – the claimant was likely to succeed if her claim were heard in court. It would have been unjustifiable to spend the time and money on defending a claim that the Church was likely to lose, and put the claimant through the ordeal of giving evidence in court.
The balance of probabilities is the relevant legal test in any civil case, and although we note the reference in your review to a 1996 case setting out the proper legal approach, we would draw your attention to the 2008 case of In Re B (Children) superseding it. We would like to take this opportunity to reassure you that as a matter of fact, the balance of probabilities was the test explicitly applied by the Core Group in its discussions. We would also like to take this opportunity to remind you that, contrary to the comments in your letter to the Archbishop of 5 July 2016, the presumption of innocence only applies to criminal cases, as explained in ‘Points on a complex case’ http://cofecomms.tumblr.com/post/137616569047/bishop-george-bell-points-on-a-complex-case
Should we have settled the claim and said nothing at all in public? If we had done we would undoubtedly have been accused of a cover-up when the information eventually emerged, as it surely would have done.
There seems to be a suggestion that where the Church settles a claim, it should produce a “case report”. This is not normally done where a claim is settled without a court hearing and if the suggestion is that it should be done in every case where the Church settles a civil claim, that would be a huge commitment of time and resources which could be better used in other ways. It would also not satisfy anyone in a case of this kind where the alleged abuser is held in high regard: in order to ensure that the claimant in this case could not be identified, significant details (locations, or dates, or her connections with the Palace at Chichester) would have to be altered for a published report, and campaigners would then have seized on those altered details and asserted that the decision could not have been right. The report would also not include all of the medical evidence, which you and other campaigners are asking to see in redacted form.
The case of George Bell will be considered by the Goddard inquiry. Justice Goddard is not intending to investigate guilt or innocence, but it is clear that she does intend to examine process, and to that end she has asked for information relating to the settlement of the Bell claim and the process that led to it (which we have provided). We would expect her to make findings about whether the process was adequate and ways in which it could have been better.
Taking survivors seriously
Ultimately and as was stated last week when we announced the independent review into the handling of the case the Church has always recognised Bishop Bell’s principled stand in the Second World War and his contribution to peace but it also has a duty to listen to survivors.
In February 2016 “Carol” agreed to carry out an interview with her local newspaper. She said that it was comments in response to the Church’s announcement which spurred her to take up the Argus newspaper’s offer, made through her solicitor, to tell her side of the story.
She said: “Some of the remarks I’ve read made me very upset. Because he did good things, they automatically assume that he couldn’t do anything wrong, which was rather hurtful because a lot of men who have done good things have also done very evil things. He might be a man of peace but that doesn’t take away the fact of what he did to me … It’s almost like they’re saying I should have kept my mouth shut and not said anything. Just do that and his good name goes on, you understand?”
The claim against George Bell could not be ignored. It required a response which did more than simply note his unblemished character and reject the claim, in which case a full civil litigation process would have followed, in which Carol would automatically have been granted anonymity. The process leading up to the settlement, the apology and the announcement was, as previously stated, long, complex and carried out with all the sensitivity that a case of this nature demands.
Meanwhile, in respect of your queries in your letter of 5 July 2016 to the Archbishop about the details of the independent review, we refer you to our announcement indicating that more details will follow in due course.
GEORGE BELL GROUP
TO THE RT REVD PAUL BUTLER, BISHOP OF DURHAM – 18 SEPTEMBER 2016
From His Honour Alan Pardoe QC and Desmond Browne QC
The Rt Revd Paul Butler,
Bishop Auckland DL14 7NR
THE BISHOP BELL CASE AND THE LAW
Thank you for your letter to the members of George Bell Group, received on 13 July 2016. This has now been seen by all members of the Group. Much may be said in response to this, but here we confine ourselves to the points of law to which you refer.
Your letter makes reference to ourselves who are members of the George Bell Group. With respect, you appear to characterise us in a strangely dismissive way which, on reflection, you may agree was not entirely appropriate. Beyond pointing out, merely for the sake of accuracy, that no one has been appointed ‘a county court judge’ since 1984 with the coming into force of the County Courts Act of that year, we will not take space to answer. Our careers and experience are accurately and briefly summarised on the George Bell Group’s website and we direct your attention to that.
As to the content of the legal section of your letter, it is of course correct that any legal advice must be based on what you, perhaps eccentrically, term in your letter ‘up-to-date law’ though one might have expected it to have been assumed that both of us would be well aware of the necessity in tendering any opinion as to the law of basing ourselves on an accurate appreciation of the relevant law in force at the material time. We gave our Opinion in full awareness of the amendments made to the Sexual Offences (Amendment) Act 1992 by the Youth Justice and Criminal Offences Act 1999 and we respond to the points made in your letter as to those amendments as follows:
For the following reason those amendments are irrelevant to this case: it is correct that, under the 1999 Act, two non-statutory offences (and only two) were added to the list of offences to which the 1992 Act applies contained in s.2 of the 1992 Act, but those offences are rape, and burglary with intent to rape. It is clear from the account given by ‘Carol’ in which she details her accusations against George Bell that she is not alleging either of those offences against George Bell and for that reason we made no reference to them in our Opinion. Those offences are wholly irrelevant to this case and it is, perhaps, surprising that reference is now made to them. It follows that the conclusions in our Opinion that the 1992 Act, as amended, has no application to George Bell’s case, because no ‘offence to which the Act applies’ was alleged or made the subject of an accusation (as defined in the Act) stand.
For the same reason the amendments in the 1999 Act of the 1992 Act have no effect in extending protection against ‘jigsaw identification’ in the present case, again because such protection only applies where either an allegation or an accusation (as defined in the Act) has been made of an ‘offence to which [the 1992 Act] applies’. For the reasons set out in our Opinion (and above), neither of those conditions operate in this case and accordingly the prohibitions in the 1992 Act have no application in this case.
Of course the Bell Group has no intention of disclosing information capable of identifying Carol but that can easily be achieved by appropriate redaction to the minimum extent necessary to protect her identity, not by misuse of the 1992 Act.
Breaches of Confidence
As to your comments about the scope of disclosure of documents supplied by Carol through her solicitor in the course of her civil proceedings against the Church of England: your letter lays great stress on Carol’s claims on your conscience but pays no attention to the claims on your conscience of justice for George Bell. The Church of England has a clear moral duty not to destroy a man’s reputation unjustly. We would suggest that the balance can be maintained by straightforwardly applying the law as to disclosure of Carol’s letter of claim. We note that you agree that this is not protected by the Civil Procedure Rules but still resist disclosure on the ground that it is prohibited by the 1992 Act. For the reasons that this letter sets out above there is no such prohibition. Again, with appropriate and minimal redaction to protect her identity, her letter of claim should be disclosed.
His Honour Alan Pardoe QC
Desmond Browne QC
cc The Rt Revd Peter Hancock, Bishop of Bath & Wells
The Most Revd Justin Welby, Archbishop of Canterbury
The Rt Revd Martin Warner, Bishop of Chichester
William Nye, Church House
Sir Andreas Whittam-Smith
GEORGE BELL GROUP
TO THE RT REVD PETER HANCOCK, BISHOP OF BATH AND WELLS – 19 SEPTEMBER 2016
Dear Bishop Peter,
BISHOP GEORGE BELL
We write as members of the George Bell Group to express our continuing concern at the way the authorities of the Church of England are handling the matter of Bishop Bell.
You will now have the letter from His Honour Alan Pardoe QC and Desmond Browne QC, written in response to the letter, ‘Further points on the George Bell case’, which was sent to the Group by the Bishop of Durham on 13 July 2016 Durham (and posted on the Church of England website). The fundamental differences in legal understanding presented by the bishop and by our two colleagues make it all the more important that the independent reviewer who will carry out the review, announced by the Church authorities on 28 June 2016, must be plainly senior and authoritative in the practice of the law if it is to resolve such questions, as well as many others.
Bishop Butler’s letter, which we understand to represent a single response to both our Review of 18 March 2016 and also our further letter of 5 July 2016 to the Archbishop of Canterbury, seems to us wholly unsatisfactory. We note, in particular, the remark, ‘… it is singularly unattractive to suggest that because there might be no legal consequences to breaching Carol’s confidence, the Church should simply provide sensitive material to a group of individuals with a keen interest in but no connection with the case’, and also observe that this has since been adopted by a spokesperson for the Church of England. Such words do nothing at all to reassure us that the whole matter has yet come to rest on a basis that acknowledges, as it should, a very considerable body of authoritative legal, academic and pastoral criticism. We can only repeat that if it is to command public confidence, this Review must in every respect show that it is wholly independent of the powers, interests, attitudes and methods which have so far defined the conduct of this unhappy, and costly, case. Bishop Butler’s further point that the Church ‘has a wider duty to Carol’ and that she has ‘already expressed herself hurt by the campaign to “clear his name” as it implies that she has not been believed’, acknowledges a proper concern for Carol’s pastoral care, but wholly overlooks the equal need to ensure justice for Bishop Bell, who appears only briefly in his letter. This will surely reassure very few, if any at all. You will be aware that further research which has taken place since the public statement of 22 October 2015 has raised fundamental questions about the allegation, as it has been made in public. This does highlight the need for all the evidence now available to be examined by the independent reviewer, and not just the processes that led to the settlement announced last October. In this regard, we note Bishop Butler’s acknowledgement that the Goddard (now Jay) inquiry is not intending to investigate Bell’s guilt or innocence, contrary to what had appeared to be the earlier understanding of the current Bishop of Chichester.
May we reiterate, and press again, the questions raised by Lord Lexden, one of the signatories of this letter, in the House of Lords on 30 June 2016:
- Will the reviewer have legal experience relevant to child abuse cases?
- Will the review be willing to receive written evidence and submissions?
- Will the review acknowledge that the burden of proof in civil proceedings rests with the claimant?
- What provision will be made to prevent the exercise being no more than a review of the processes set out in the Church’s practice guidelines which led to the statement last October?
- Will the concerns raised by the Bell group’s report be addressed?
Finally, are you able to give any indication as to when the name of the independent reviewer and terms of reference of the review are likely to be announced?
Lord Carey of Clifton
The Revd Dr Keith Clements
Ruth Hildebrandt Grayson
His Honour Alan Pardoe QC
The Very Revd Professor Martyn Percy
cc The Most Revd Justin Welby, Archbishop of Canterbury
The Rt Revd Paul Butler, Bishop of Durham
The Rt Revd Martin Warner, Bishop of Chichester
William Nye, Church House
Sir Andreas Whittam Smith, Church Commissioners