CANON 39: OF PROCEEDING AGAINST PRIESTS AND DEACONS
Amended Provincial Synod 2019
How charges are to be laid:
1. Diocesan Tribunal
(a) Any charge against a priest or deacon of the Province must proceed from Presenters who shall be:
(i) a cleric licensed in this Province, or
(ii) both Churchwardens or
(iii) two governors of an institution or
(iv) comparable officers of a sphere of ministry, or
(v) three or more confirmed Communicants twenty-four years of age or upwards, all of the Parish or institution or sphere of ministry concerned, to which the Accused is or was licensed, at the time the alleged offense occurred.
(vi) The Bishop of the Diocese, if seeing sufficient cause, may act without such charge being preferred; and the Bishop shall then at once place the matter in the hands of a Board of Preliminary Inquiry as defined in the following section 2.
(b) (i) Where the facts on which a charge is based arose in a diocese or pastoral area (the ‘originating jurisdiction’) other than the one within this Province, or another Province, or a pastoral area in a Church in Communion with this Province where the accused is officiating at the time the charge is laid (the ‘present jurisdiction’), then the charge shall be proceeded with as set out in paragraph (a) of this section from the originating jurisdiction.
(ii) The charge shall be transmitted to the Bishop or Vicar General or most senior cleric or officer (howsoever titled) of the present jurisdiction with the request (for the said Bishop or Vicar General or senior cleric or officer to decide in that person’s discretion) to establish a Board of Preliminary Inquiry or whatever procedure may be required in the present jurisdiction to hear and determine the charge.
(c) Where the facts on which the charge is based arose extra-territorially any of the areas referred to in subsections (a) or (b) of this section, the Bishop shall appoint an investigation team, appropriately composed, in terms of Procedure B, Step 2 of Act XV, to be the Board of Preliminary Inquiry as therein provided for.
2(a) Board of Preliminary Enquiry
(i) Subject to section 4, the Bishop (or in the Bishop’s absence, the Vicar-General), on receiving the Articles of Presentment under Canon 37 Of Judicial Proceedings must within twenty-one days constitute a Board of Preliminary Inquiry.
(ii) The time periods set out here and elsewhere in this Canon must be adhered to, unless there is good cause not to, in which case the act in question must be affected as soon as possible in the circumstances.
(b) Correspondence with the accused
(i) The Bishop must, within seven days of receiving the Articles of Presentment, transmit a copy of the Articles of Presentment to the accused.
(ii) Should the Accused wish to deliver a written answer to the Bishop, the Accused must do so within seven days of receiving the Articles of Presentment.
(iii) The Bishop must send this reply to the Presenters and Complainant within seven days and advise them that they may respond to the accused’s reply.
(iv) Should the Presenters wish to respond to the accused’s reply, they must do so within seven days of receiving the reply.
(v) Should the accused not reply, then the proceedings may continue in the absence of such reply.
(c) Board membership
(i) The Board must consist of two priests and a lay person learned in the law (being a confirmed Communicant of the Church of this Province), provided that, at least one member of the Board must be a woman.
(ii) These members may not be appointed to any Diocesan Tribunal established to try the Accused, in terms of Canon 36(5).
(d) Dean to appoint
If the Bishop be the Presenter, the members of the Board must be appointed by the Dean (failing who for any reason the most senior cleric in the Diocese as determined by the provisions of Act XIII).
(e) If the Presenters or Complainant respond to the Accused’s reply to the Articles of Presentment, the Board must consider any such response prior to its decision as set out in Section 3 below.
(f) The Board must reach its decision as set out in Section 3 below within twenty-one days of having been constituted under subsection (a).
3. To report immediately
(i) The Board shall consider whether there is a prima facie case against the Accused, and shall report immediately after reaching its decision to the Bishop, who shall decide whether further proceedings shall be taken or not.
(ii) The Board must provide written reasons together with its findings to the Bishop, the Accused, the Presenters and the Complainant.
(iii) At this point the laying of the charge, the report of the Board and decision of the Bishop (together with the reasons referred to in section 5 of this Canon, if applicable) may be made public.
4. Suspension of accused
(a) The Bishop may within seven days of receiving the Articles of Presentment immediately suspend the Accused, with emoluments.
(b) The Board must consider and report on whether there is a prima facie case against the Accused, and whether to advise the Bishop to confirm any suspension of the Accused under subsection (a), or if not already suspended, to suspend the Accused.
(c) Accused to be heard
Notwithstanding the provisions of subsections (a) and (b) any licensed cleric within the Province, if accused of any offence under section 1 of Canon 37 and after the Bishop has given the cleric an opportunity to be heard, and explanation and pastoral ministration, may at any time before or after receiving the Articles of Presentment be suspended and inhibited from the exercise of ministerial duties and access to Church premises and to any assembly of congregants by the Bishop until the trial is concluded, should it appear to be immediately necessary for the prevention of scandal or for pastoral reasons or for the safety of Church assets.
(d) The accused shall have fourteen days from being informed of the Board’s report that there is a prima facie case (if that be the case) to submit a written reply, or supplementary answer to the Articles of Presentment if that was submitted in terms of section 2 (b), to the report. If this is not done, the Tribunal shall proceed without it.
(e) The accused shall have the right to lead and give evidence and to cross-examine witnesses, in the same was as that provided for in section 13 (c), and to be accompanied as therein provided. Unless otherwise determined by the tribunal for good cause, the trial shall be open to the public.
5. Bishop’s veto
If the Bishop refuses to try the Accused, the Bishop must provide written reasons for this refusal to the Presenters, the Complainant and the Accused, in writing, within fourteen days after receipt of the report of the Board of Preliminary Enquiry.
(i) In this event the Presenters or Complainant may apply to the Metropolitan or, if the Metropolitan be the Bishop who refuses, to the Diocesan Bishops through the Dean of the Province, and in either case if the Metropolitan or the Diocesan Bishops by a majority of their number think fit, the matter shall proceed to trial.
(ii) Notice of the intention so to apply shall be given in writing to the Bishop of the Diocese and the other party within fourteen days after such refusal, and the application, together with a copy of the Articles of Presentment, shall be forwarded to the Metropolitan or Dean of the Province within thirty days after receipt of the Bishop’s refusal; provided that either the Presenters or the Complainant may apply to the Metropolitan or Dean of the Province (as the case may be) for condemnation for failure to give notice within the stipulated time periods, which condemnation may be granted on good cause shown.
6. Manner of serving accusation
Notice of the intention to proceed, and the names of the persons chosen to be members of the Tribunal, must be transmitted to the Accused and the Complainant, either personally or by registered post at their last known places of residence, twenty-eight days at least before the hearing of the case.
7(a) Right of challenge
(i) The accused and, where the charges are brought in terms of Canon 37 (1)(a) or (b), the Complainant and Presenters have the right to challenge any members of the Tribunal other than the Bishop, provided that they do so within fourteen days of the receipt of the information.
(ii) If any member of the Tribunal be challenged, and such challenge be upheld by the President, the place of any member so challenged shall be filled by the appointment of another by the President of the Tribunal, without any right of challenge.
(b) Venue of trial
If the accused fails or refuses to take part in trial at any stage or at all then, unless the Tribunal is satisfied that there is good cause to do otherwise, the trial shall continue in the absence of the accused.
8. Reference to Bishops
It shall be competent for the President of the Diocesan Tribunal to request the Metropolitan (or if the Metropolitan be the Accused then the Dean of the Province) to appoint a panel of three bishops to whom the President may refer any questions of interpretation of the Faith and Doctrine of the Church and their interpretation, after giving the accused an opportunity to make submission orally or in writing, shall be considered final.
9(a) Judgement of Tribunal
(i) The judgement of the Tribunal as to the facts of the charge shall be that of the majority of its members, and all members shall have the right to state the ground for their finding.
(ii) In cases of charges under Canon 37(1)(a) or (b), all members of the Tribunal must produce written reasons for their decisions.
(iii) Members of the Tribunal may write joint, concurring judgements.
(iv) The Bishop of the Diocese, or in the Bishop’s absence, the Vicar General, shall decide and pass sentence in respect of any findings of guilt, after giving the accused an opportunity to be heard.
(v) The Tribunal may make recommendations in this regard, which must be taken into consideration by the Bishop or Vicar General prior to making the decision and passing sentence.
(b) In the event of the Bishop having been the person (or one of the persons) who preferred the charge then in place of the Bishop the President of the Tribunal appointed in terms of section 5 ( a ) of Canon 36 Of the Tribunals of the Church (or in the absence of the President another Bishop appointed by the Metropolitan if the President was a Bishop or another legal officer of the Church appointed by the Metropolitan if the President was a legal officer of the Church) shall decide and pass sentence in respect of any findings of guilt after giving the accused an opportunity to be heard and having considered recommendations in regard to sentence (if any) made by other members of the Tribunal.
10. Sentence by the Bishop
Where sentence is to be pronounced, it shall be pronounced by the Bishop of the Diocese or the Vicar General in the absence of the Bishop.
11. Bishop’s Informal Tribunal
Without derogating from the other provisions of this Canon or from the provisions of Canons 40 and 41, and subject to section 20 of this Canon and any other provision of the Canons providing otherwise, a Diocesan Bishop who has reason to believe that a cleric may, in the light of charges brought, be guilty of any of the offences referred to in Canon 37 section 1 shall have the choice to proceed in terms of sections 11 to 19 inclusive of this Canon (an “Informal Tribunal”) in place of sections 1 to 10 of this Canon through a Diocesan Tribunal, or, if charges have already been laid in terms of section 1 of this Canon, then instead to proceed by way of an Informal Tribunal.
(i) Likewise, where charges have been laid against a cleric in terms of section 1 of this Canon, the cleric, save when the Canons provide otherwise, shall also have the choice to have the charges heard by an Informal Tribunal instead, which choice must be exercised in writing by notice to the Bishop within seven days of receiving notice of the charge.
(ii) In this matter, the cleric’s choice, if exercised, shall override that of the Bishop.
(iii) In the event of charges having been preferred in terms of section 1, then those charges shall constitute the notification in writing of the charges required in terms of section 12, in the event of an election being made to proceed before an Informal Tribunal.
12. Issue of summons
In summoning the cleric to an Informal Tribunal, the Bishop shall ensure that the charge or charges in question – are notified to the cleric within fourteen days of the choice being made, unless already notified, which the cleric is required to answer to.
13(a) Constitution of Hearing
(i) At the hearing before the Bishop, the Bishop shall be assisted by the Chancellor or Registrar of the Diocese (or if there be none or if either or both are not available or are conflicted in any way, a member of the laity being a Communicant learned in the law and appointed by the Bishop) who will be present in an advisory capacity.
(ii) The Bishop shall put the charge to the cleric together with a written summary of the evidence supporting the charge, and the cleric shall be given an opportunity to be heard.
(b) If the Bishop brought the charge
In the event of the Bishop having being the person (or one of the persons) who preferred the charge, then in place of the Bishop, the most senior of any Suffragan Bishops, or the Suffragan Bishop (if only one) failing whom for any reason, the Dean of the Diocese (failing whom for any reason the most senior cleric in the Diocese as determined by the provisions of Act XIII) shall hear and preside in the matter in place of the Bishop for all purposes in terms of sections 13 to 19 inclusive.
(c) Rights of the accused
The cleric in exercising the right to be heard by an Informal Tribunal, shall in reply be entitled to bring forward any witnesses to support the defence, to cross-examine witnesses brought forward to give the evidence summarised in the written summary referred to in section 14 of this Canon and to be accompanied by another cleric within the Province of the cleric’s choice, to assist and counsel the cleric but not to intervene directly.
(d) In the event of the Complainant being called to give evidence, the Complainant shall be entitled to be accompanied. In the event of a minor being brought forward, the minor shall be accompanied by an adult deemed suitable by the person presiding in the matter.
(e) At the informal Tribunal only the persons named in sub-sections (a) to (d) above shall be entitled to be present, save with the consent of the person presiding.
14. Suspension from office
The provisions of section 4 shall apply mutatis mutandis to proceedings under an Informal Tribunal.
15. Notice of sentence
(i) If the Bishop finds the cleric guilty of the charge, the Bishop shall advise the cleric of the verdict, and before imposing sentence afford the parties concerned the opportunity, on a day and at a time determined by the Bishop, to present evidence and argument on the appropriate sentence.
(ii) Thereafter the Bishop may impose any of the sentences, as considered appropriate, set out in Canon 40, but subject to the further provisions of that Canon.
16 (a) The Bishop shall notify the cleric in writing of the sentence.
(b) Within seven days of being so notified the cleric may, if the sentence is deposition, degradation or suspension without emoluments, appeal to the Metropolitan (if the Metropolitan is unable to act, the Dean of the Province) against the conviction or sentence of both.
17. Review of Hearing
The Metropolitan or the Dean (as the case may be) may
(a) confirm or overturn the conviction;
(b) confirm, vary or overturn the sentence;
(c) suspend the conviction or sentence and refer the matter back to the Bishop for reconsideration; or
(d) declare the proceeding of the Informal Tribunal null and void, and direct the matter to be heard again by a Diocesan Tribunal presided over by another Diocesan Bishop in terms of Canon 36 (5) (a).
18. Right of appeal to Metropolitan
Where a lesser sentence than any set out in sections 1 (c) and (d) of Canon 40 of this section is imposed, the cleric may within seven days of the sentencing appeal to the office of the Metropolitan, which shall ensure that the appeal is considered by the Chancellor or Registrar or a confirmed Communicant learned in the law of a diocese other than that in which the cleric was licensed, assisted by a priest. The persons hearing such appeals shall have only the powers vested in the Metropolitan in terms of section 17 (a), (b) or (c) of this Canon.
19. Appeal to be in writing
(a) All appeals shall be decided upon written representations by the cleric and others concerned, and should as far as possible be decided within three months of the submission of the appeal in question.
(b) The person hearing an appeal may call for oral representations from the parties, and each party may do so at own expense. Where a party fails or refuses to submit a representation, the appeal may proceed in the absence thereof.
(a) If the cleric chooses to take the matter on appeal or to require it to be dealt with under Canon 39 sections 1 to 10 read with Canon 37, any suspension under section 4 of this Canon shall continue until the final determination of the appeal.
(b) If the sentence is deposition or degradation and the cleric chooses to take the matter on appeal or require it to be dealt with under Canon 39, sections 1 to 10 read with Canon 37, the Bishop shall have the power to suspend and inhibit the cleric, as under section 4 of this Canon.
21. Hearing discontinued
Notwithstanding the a foregoing, the Bishop may at any time discontinue a hearing under Canon 39 sections 11 to 19, and shall do so at the request of the cleric, and cause the matter with which the Bishop is seized to be dealt with under Canon 39, sections 1 to 10.
22. Canon 37.1 charges
In the case of a charge under Canon 37 (1)(a) or (b), the procedure of a Bishop’s Informal Tribunal may not be used.