CANON 38: OF PROCEEDINGS AGAINST BISHOPS
Amended Provincial Synod 2019
1. No charge under Canon 37 shall be received against a Bishop of the Province (including the Metropolitan) unless:
(a) How charges are to be laid
(i) it be preferred by at least three priests licensed in the Province or by two Diocesan Bishops, or,
(ii) if it relates to matters other than faith and doctrine, by at least any five of the following, namely,
(aa) two priests and three laypersons being churchwardens,
(bb) parish councillors or members of the Diocesan Trusts Board, up to two of whom need not be of the Diocese of the accused.
(b) The Metropolitan is satisfied that steps have been taken by the presenters to have the matters concerned handled through the structures of the Diocese (i.e. the Chapter or Senate or Diocesan Council or the equivalent body), unless the Metropolitan be the Accused in which case the Dean of the Province must be so satisfied.
(a) The Articles of Presentment referred to in section 7 of Canon 37 shall be delivered to the Metropolitan, unless the Metropolitan be the Accused, in which case they shall be delivered to the Dean of the Province, who shall thereafter execute all functions appertaining to the office of the Metropolitan as set out in this Canon in respect of the proceedings commenced by the said Articles.
(b) Copies of the Articles shall also be delivered, at the same time, to (i) the Accused Bishop,
(ii) the Dean of the Diocese (failing whom for any reason the most senior Cleric of the Diocese in terms of Act XIII),
(iii) to members of the Diocesan Senate or Chapter, and
(iv) the Diocesan Chancellor and Registrar.
3. Board of preliminary inquiry
(a) The Metropolitan, on receiving such Articles of Presentment, may within twenty-one days constitute a Board of Preliminary Inquiry, consisting of :
(i) two Diocesan Bishops not being presenters of the charge and one lay person learned in the law (being a confirmed Communicant of the Church of this Province), and
(ii) shall forthwith inform the Accused of the appointment of such Board and,
(iii) if such a Board is constituted, invite the Accused to submit to the Board in writing within ten days an answer to the Articles of Presentment, if the Accused so desire.
(b) To report within thirty days
The Board shall consider whether there is a prima facie case against the Accused, and
(i) shall report within thirty days of their appointment to the Metropolitan, who shall decide whether further proceedings shall be taken or not.
(ii) If the Metropolitan so determine, the Metropolitan may exercise visitatorial powers under section 2(g) of Canon 2 Of the Metropolitan.
(c) Pastoral Team
(i) Alternatively to the appointment of the Board, the Metropolitan may decide to appoint a Pastoral Team from the Province to undertake a pastoral visit to the Diocese in order to meet with the presenters, the Bishop and any others concerned in the matters raised, and to seek to resolve the issues concerned through pastoral ministration.
(ii) At the same time the Metropolitan shall nominate three Diocesan Bishops as conferring Bishops in the matter, from whom the Metropolitan shall take counsel as provided for below.
(iii) The Pastoral Team shall report on their visit, in writing, to the Metropolitan, and send copies of their report to the Accused Bishop, to members of the Diocesan Senate or Chapter, to the Diocesan Chancellor and Registrar, and to the presenters.
(iv) The Metropolitan shall consult with the conferring Bishops and, having done so, shall have the discretion to take such further action as is believed necessary, including referring the matter to trial, in which event the report of the Pastoral Team shall be deemed to be the report of the Board of Preliminary Enquiry.
(v) However, in this case the conferring Bishops shall recuse themselves from the Court as constituted in terms of Section 1, of Canon 36, Of the Tribunals of the Church.
(d) Matter referred to trial
Within sixty days of the Pastoral Team reporting to the Metropolitan, the Accused Bishop may elect to have the matter taken to trial if the Metropolitan has not done so. In this event the Accused must send written notice of this election to the Metropolitan, who shall then act in this regard as provided for in subsection (c) above.
4. Manner of serving accusation
(a) If the Metropolitan, in the exercise of the discretion in section (c) (v) above decides that the case should proceed, the decision shall forthwith be intimated to the Presenters and to the Accused, and a copy of the Articles of Presentment shall within twenty one days be transmitted to each of the other Diocesan Bishops.
(b) All intimations and citations shall be served on the Accused personally, or be sent by registered post, courier or Sheriff to the Accused’s last known place of residence.
5. When the Metropolitan is party to a suit
If a charge is to be preferred before the Synod of Bishops against the Metropolitan, or if the Metropolitan personally prefers such a charge against another Bishop, the Dean of the Province (or where the Dean is debarred from acting, the Diocesan Bishop senior by consecration), shall perform all duties in relation to the trial which the Metropolitan would otherwise perform under this Canon.
6. Time of trial
The trial shall take place within four months of the receipt by the Metropolitan of the report of the Board of Preliminary Inquiry, unless it appears to the Metropolitan necessary to postpone it to a later day; but in no case shall it be postponed beyond six months.
7. Duties of advisers
(a) The Lay persons appointed to assist in the hearing of a case shall answer such questions as shall be put to them by the Tribunal, and
(b) shall be at liberty to tender to the Tribunal their opinion on questions that may arise; and
(c) the Tribunal shall be bound to consider such opinions before pronouncing judgement.
8 (a) Sentences
The sentence, if the Accused be found guilty, shall be either
(iv) deposition, or
as the Tribunal may determine, provided that:
(b) no Bishop shall be found guilty unless at least two-thirds of the Bishops present agree, and the sentence shall be that of the majority. Each Bishop shall be at liberty to deliver judgement separately.
9. Judgement to be communicated to every Diocese
(a) It shall be the duty of the Tribunal, whenever judgement has been given, to communicate such result to the Bishop (or senior priest) of every Diocese of this Province, and
(b) it shall be the Bishop’s (or senior priest’s) duty to cause it to be made known to every Cleric within the Diocese.
10. Care of Diocese during suspension
Should the sentence be one of suspension, the Metropolitan shall make provision for the care and administration of the Diocese as the Metropolitan shall see fit, until the period of suspension be terminated.
11. Judgement conclusive
The judgement of the Tribunal in all proceedings under this Canon shall be final and conclusive: provided that any parties to a suit may demand that before the Tribunal gives final judgement the reference allowed to the Archbishop of Canterbury in sections 5 and 8 of Canon 41 0f Appeals be made.