TH v Chapter of Worcester Cathedral & Anor

INTRODUCTION

The claimant is in his late thirties. He is a talented and enthusiastic bell ringer who, with the permission of the first defendant, rang the bells in Worcester Cathedral (“the Cathedral”) as a member of the Guild of Bell Ringers of Worcester Cathedral (“the Guild”). These proceedings arise out of the circumstances in which, on 4 February 2015, the first defendant revoked the claimant’s permission to be a member of the Guild and to ring the bells at the Cathedral (“the first decision”); and the second defendant’s invitation to the claimant, dated 28 July 2015, to sign an agreement that placed conditions on him ringing bells in all other churches within the Worcester Diocese (“the second decision”).

Both the first and the second decisions arose out of findings that the claimant had behaved inappropriately with children and young people. There was, and remains, no question of any criminal conduct. The original concerns were investigated by the first defendant, and advice was taken from Worcestershire County Council’s safeguarding officer, known as the Local Authority Designated Officer (“the LADO”). Both the first and second decisions followed the LADO’s advice.

The claimant commenced judicial review proceedings on 23 September 2015. He complains that the decisions were irrational and unjustified and in breach of his Article 8 rights. He also complains that the investigation was biased and/or that the decision-making process was unfair because the outcome was predetermined and/or that he was not provided with sufficient disclosure in order to be able to answer it effectively. In response, both defendants say that the decisions are essentially private in nature and are not therefore caught by Article 8 or amenable to judicial review. They say that the claim in respect of the first decision is significantly out of time. In any event, they say that, as a matter of substance, there is no merit in the allegations of irrationality, bias or non-disclosure.

Both before and during the two day hearing, the disputes between the parties were extensive. There were preliminary debates about anonymity, late evidence and disclosure. There were factual disputes which, in the context of a claim for judicial review, was unfortunate. In two instances, detailed at paragraphs 149-158 and 160-162 below, I was urged to make findings of fact on behalf of the claimant which were wholly contrary to the evidence and which I consider were improperly raised.

The structure of this Judgment is as follows. In Section 2, I deal with the preliminary debates. At Section 3, I set out the substantial issues between the parties. In Section 4, I set out a summary of the factual background, doing my best to concentrate on those matters which do not appear to be disputed. Thereafter, in Sections 5, 6, 7, 8 and 9 below, I deal with the substantive issues between the parties. There is a short summary of my conclusions in Section 10 below.

PRELIMINARY DEBATES

Anonymity

The defendants sought an order anonymising the names of:

In his second witness statement, the claimant opposed the orders sought by the defendants, arguing that “in seeking to draw a veil of confidentiality over this case the defendants are more interested in concealing their own embarrassing shortcomings”. In his late third statement (which is itself the subject of debate which I address in Section 2.2 below), the claimant maintained this stance, although he said that he was willing “to offer that the identities of those persons currently under 18 years of age who were closely connected with the enquiry, in practical terms this means B and I, may have their identities redacted.” That remained Mr Dixon’s stance at the hearing. He had embarked on an exercise which was designed to put some of the birth dates of the children in issue when, in the interests of efficiency, I cut him short.

I was in no doubt that anyone involved in the investigation, who was under the age of 18 at the time of the events themselves, or the investigation into those events, was entitled to anonymity. I ruled that they would be referred to in the hearing by a designated letter. I adopt the same designation in this Judgment.

I was not persuaded that it was necessary to extend that anonymity to the children’s parents. A designation of a letter to the child, and care in the preparation of this Judgment, will make it impossible to link that child with any of the adults involved in the investigation. I am confident that there is nothing in the Judgment set out below which could lead anyone to make that link. I therefore declined to make the second part of the anonymity order sought.

The defendants offered the claimant anonymity. The claimant resolutely declined the offer. Although I have not been asked to reconsider that position, I have, on my own initiative, concluded that the claimant’s name should also be anonymised.

Late Evidence

By an application dated 27 April 2016, the claimant sought to rely on two further statements: the third statement of the claimant and the statement of A, a child under the age of 18 whose name is therefore anonymised, despite his stated wish to the contrary. The statements were received by the court on 3 May 2016, the day before the two-day hearing which had been fixed for some months. The application to adduce this late evidence was not opposed by the defendants.

The application was not made in accordance with the CPR. There was no explanation as to why this material was so late. On the face of it, most or even all of it could and should have been put into evidence at the time that the original statements were prepared. It was not responsive in any meaningful way to any subsequent evidence filed by the defendants. Mr Dixon did not dissent from either of those propositions.

I was also concerned about the accuracy of these late statements. They seemed to be designed to put yet more facts in issue. Thus, merely by way of example:

Accordingly, when this matter was debated at the outset of the hearing, I indicated that, in general terms, I was reluctant to have regard to evidence which was unjustifiably late. However, I made it clear to Mr Dixon that if there was something particular on which he needed to rely, within either the third statement of the claimant or the statement of A, then he was expressly to identify it during the course of his submissions and I would take it into account. In fact, other than one passage in the third statement of the claimant (dealt with at paragraph 139 below), there was no such indication.

Specific Disclosure

At the start of the trial, unheralded in his skeleton argument, Mr Dixon made an application for specific disclosure. This related to two documents:

There was nothing to indicate that there were any manuscript notes from which Mr West prepared his typed report. However, because the report was an important record of the decision-making process, I ordered that Mr West was to say whether or not there were any such manuscript notes. If there were, he was to disclose them. If there were not, he was to explain why not. In response to the order, Mr West subsequently confirmed in writing that there were no manuscript notes and that, as is apparent from the face of the document, it was a ‘rolling report’, kept on his computer and updated at various stages in January/early February 2015.

In relation to the LADO notes, it seemed to me at first blush that the obvious answer to the claimant’s application was that these notes were the property of Worcestershire County Council, the LADO’s employers, and were therefore not within the possession custody or control of the defendants. Subsequently I noted that this was indeed the answer given by the defendants’ solicitors to the original request for those notes on 18 April 2016. It was also Ms Hannett’s answer to this part of the application at the hearing. In my view, this proposition was unanswerable. These notes were not in the possession, custody or control of the defendants and are therefore not disclosable. In any event, no case as their relevance or potential probative value was made out. The LADO report speaks for itself. I therefore decline to make any order in respect of those notes.

During the course of his oral submissions in respect of the LADO notes, Mr Dixon said that the defendants’ failure to disclose those notes “smacked of trying to hide evidence”. I understand that, in the heat of the moment, counsel sometimes make submissions which are put too high and which, with hindsight, they regret. But here, that allegation of dishonesty was all of a piece with the claimant’s stated reason for his opposition to the anonymity order, referred to at paragraph 7 above. It also finds an echo in two particular matters which Mr Dixon advanced on the issues of bias and predetermination which, as I explain in paragraphs 149-158 and 160-162 below, were not only unarguable but should not ever have been advanced.

Accordingly, I should state categorically that, in my view, this particular allegation against the defendants, and the general suggestion of conspiracy and concealment from which it stems, are entirely without foundation. There is nothing to suggest that the defendants have been anything other than clear and straightforward in their disclosure obligations, and in all of their other dealings with the claimant. Everyone with any experience of this area of law knows that it is often difficult to juggle the competing rights of those making the complaints, on the one hand, and those who are the subject of the complaints, on the other. I can see nothing to indicate that the defendants ever did anything other than their level best to balance these competing demands fairly and transparently. I regret that the claimant (or more accurately, his advisors) has felt it necessary to pursue these baseless suggestions all the way through a two-day hearing.

The five substantive issues between the parties were as follows:

Issue 1: The Jurisdiction Issue: Do these decisions trigger a claim under Article 8 and/or are they amenable to judicial review?

Issue 2: If so, is the claim in respect of the first decision out of time?

Issue 3: If so, is the second decision a decision for the purposes of judicial review?

Issue 4: The Substantive Issue: Has an Article 8 or judicial review claim been made out?

Issue 5: Were the decisions procedurally flawed?

THE FACTS

As noted above, the potential for factual dispute in this case was considerable. In particular:

The problems created by the potential for factual dispute were compounded by the documentation. Although there were two full lever arch files containing contemporaneous documentation, those files were not arranged chronologically. Indeed they were not even chronological within themselves so, in order to tell any part of the story, it was necessary to flip back and forth between the two files and back and forth within each individual file. That has made the court’s task much more difficult than it would otherwise have been.

Accordingly, I set out below what seem to me to be the critical features of the chronology. I have endeavoured to focus on those matters which are not controversial, at least not to any significant extent. That has meant a focus on the contemporaneous documentation, rather than some of the later contentious evidence in the witness statements.

In February 2014, Mr Mark Regan, the Ringing Master at Worcester Cathedral, had sufficient concerns about the claimant’s behaviour with young ringers under the care of the Guild to raise the issue directly with him. Mr Regan was to say later that the claimant responded by saying that he did not know about the Cathedral’s safeguarding policies, so these were sent to him. However, Mr Regan was apparently concerned that the claimant did not modify his behaviour. Eventually, on 9 July 2014, Mr Regan brought his concerns to the attention of Mr West, the Cathedral’s Steward. He took advice from the then Worcester Diocese’s Safeguarding Officer, Mrs Maria Johnson.

Mr West and Mrs Johnson met with Mr Regan and another member of the Guild, together with Canon Alvyn Pettersen, Warden of Ringers, on 16 July 2014. Mr Regan outlined his concerns and he was asked to put those concerns in writing. The contemporaneous documents show that these concerns included intimidating and threatening behaviour, and a failure to follow safeguarding guidance provided to him, including being alone with young bell ringers having been told not to. At the same time, on the advice of Mrs Johnson, it was agreed that the claimant should be suspended from taking any part in bell ringing activities either at the Cathedral or at any other church in the Diocese, whilst an investigation was carried out.

There is a note of this meeting in a document prepared by Mrs Johnson which, in view of a later allegation against Canon Pettersen, becomes important. In a document entitled ‘The Diocese of Worcester Case Referral Form,’ Mrs Johnson refers to 16 July 2014 and says:

“AP [Canon Pettersen] left meeting at 14:00hrs. Agreed between MR, LW, JC and MJ no complaint made specifically at this time about TH by any young bell ringer. Agreed that TH had breached boundaries/being alone with children when asked not to be/giving lifts to young bell ringers. Some of the young bell ringers are scared of him. Use of Facebook.”

An action plan was then set out.

There was a meeting with the claimant on 21 July. Immediately thereafter, Canon Pettersen, on behalf of the first defendant, wrote to the claimant to confirm the discussion at the meeting. The claimant was informed that it had been alleged that, on numerous occasions, he had broken the first defendant’s safeguarding policy by being alone with young people as part of his bell-ringing activities. The letter made reference to consultation with Mrs Johnson “who has advised that for the time being you should not take part in any bell ringing activities either at the Cathedral or at any other church in the Diocese. I therefore ask that you abide by this advice.”

On the same day, the claimant prepared what he called a “submission” which, although concerned with the first defendant’s safeguarding policy generally, also made two points which are central to the claimant’s position now. First he complained that “no detailed description is given of what safeguarding issues may be deemed to exist”. Secondly, he complained that Mark Regan had a conflict of interest, because he was both a complainant and investigating other complaints.

Mr Regan set out his concerns about the claimant to other members of the Guild in an email dated 26 July 2014. He began that email by saying: “This is unpleasant. And our policy of being inclusive and decent has enabled [the claimant] to slowly build inappropriate relationships and poison everything we stand for and do. We will have to tighten up our safeguarding processes and protect all our ringers from any bullying by [the claimant] which will inevitably take place.” The email then went on:

“[The claimant’s] behaviour over the past few years has caused everything from minor irritation to severe distress in our group. Some incidents in isolation may not seem significant, however, when seen as a whole they present a disturbing picture. [The claimant] has received many warnings (friendly to formal) about his behaviour from many members of the Guild. These have only a short term effect, and he soon reverts to type. In discussing his behaviour with members many express concern that he might find out about any conversations about him. This indicates they are scared of him. For the past five years [the claimant] has been a member of the Guild under my protection.

The combination of inappropriate behaviour, ignoring the safeguarding rules, spending time alone with young ringers, bullying behaviour to other ringers and my awareness that many of our ringers are scared of [the claimant] made me realise I protected him for too long.”

The email identified events when it was said that the claimant was taking under-age youngsters drinking and spending time alone with those under 18 years old. There was also concern about his use of Facebook and how he had been told by many members of the Guild “to remove sexually embarrassing and inappropriate comments.” The email concluded with Mr Regan’s view that the claimant “clearly has no concept of social and sexual boundaries.”

The purpose of this email was to obtain information from other members of the Guild in order to provide an agenda for the investigation. It appears that this information was provided promptly because, on 28 July 2014, Mr Regan emailed Mrs Johnson, with a copy to Canon Pettersen and others, setting out a number of examples of the claimant’s inappropriate behaviour with, amongst others, child B and child M. The email described the claimant’s relationship with M as “the main cause of our concern”. The email also contained two examples of bell-ringing trips which the claimant had organised for young ringers without complying with the safeguarding policy. One trip was to Edgbaston; the other to Scotland. Mr Regan said he stopped both when he learnt of them.

It is plain that Mr Regan was deeply concerned about the claimant. This is evidenced further by an email dated 26 August 2014 in which he informed a female third party about his concerns and said:

“Regardless of the outcome of the investigation TH will no longer have any involvement or contact with any young ringers under our care at the Cathedral.”

When the fact that this had been sent to a third party was drawn to the attention of Mrs Johnson she told her that the matter was “strictly confidential” and no information should have been shared with the third party in the way that is was.

Mrs Johnson subsequently commenced her investigation in late August/early September 2014. She interviewed a total of 14 young ringers. The vast majority were under 18. The evidence that she obtained included a number of statements which were supportive of the claimant, and others which made no complaints of inappropriate behaviour on his part. However, there were others which did. In particular I note:

In addition, there were hundreds of Facebook entries as between the claimant and B. Some of them used code words for individuals and subject matter which B explained to Mrs Johnson (including one for an erect penis). The overall impression of these entries is of the claimant flirting with B and, as B explains, some of it is heavily-laden with sexual innuendo. I deal with those messages in greater detail in paragraphs 124-125 below.

During the investigation, on 5 September 2014, the claimant’s first solicitors wrote seeking full details of the allegations against him. Mrs Johnson replied on 9 September 2014 saying that there were three main issues:

“1.

After being advised that he should not be alone with the young ringers continued to do so.

2.

He met some of the bell ringers socially at his and their homes.

3.

He had organised bell ringing outings without the appropriate consent.”

She also referred to a fourth concern, about the Facebook messages.

Mrs Johnson’s letter referred to a ‘Position of Trust’ meeting which had been held on 29 August 2014, chaired by the LADO. It had been agreed at that meeting that, at that stage, there was no evidence of a criminal nature so that the investigation would be completed by the Church and the results reported back to the LADO.

Following a further exchange with the claimant’s then solicitors, Mrs Johnson wrote again on 18 September 2014 to clarify the position in relation to Mr Regan. She said:

“TH can set out his concerns regarding the motives of Mark Regan either a the meeting that I shall have with him once the interviews have taken place or in writing before the interview takes place, either through your good offices or direct to me himself…all reasonable endeavours have been taken to prevent disparaging comments being made about TH and as far as Mr Regan is concerned he has been specifically instructed by the Cathedral Steward not to be involved in or make any comment about the matter with the exception of acting as parent to his bell ringing children when they are interviewed. All children interviewed have also been told of the need to keep matters confidential, as have their parents.”

Thereafter there was a delay because Mrs Johnson was diagnosed with a terminal illness. The next event was a meeting on 10 November 2014, which was attended by the claimant and Mr West, the Cathedral Steward and Mr Lees, the Acting Safeguarding Officer for the Diocese of Worcester (in place of Mrs Johnson). By reference to a document which has been called variously ‘Document A’ or the ‘Concerns Document’ (Footnote: ¹), which was not shown to the claimant at this stage, various specific concerns were put to the claimant. These were under the three heads identified by Mrs Johnson on 9 September 2014, and the Facebook issue, together with two other particular concerns (including the incident at Buckfast Abbey to which I have referred at paragraph 13(a) above). The claimant refused to comment on any of these matters because he said he was entitled to see the statements on which they were based. Unhappily, therefore, this meeting achieved nothing and did not advance the investigation, or the claimant’s response to the allegations, in any meaningful way.

On 22 December 2014, a pack of documents which had been requested by the claimant was provided to him. This included the Concerns Document noted in the previous paragraph, and some of the statements from the children, suitably anonymised. The claimant’s immediate response to the documentation, in his letter of 23 December 2014, was to complain about what was missing. There was still no attempt on his part to grapple with the detail.

On 20 January 2015, there was a meeting chaired by Canon Pettersen and attended by, amongst others, Mr West and the claimant. There are a number of different documents relating to this meeting. However, cutting through the competing versions, it appears uncontroversial that, at that meeting, the claimant handed to Canon Pettersen a document entitled ‘Response to Concerns’ which was his response to the documents sent to him on 22 December 2014 (including the Concerns Document). It is not clear why the claimant waited until the meeting to hand the Response Document over because, at 113 paragraphs and 20 pages in length, it could not be read, let alone digested, at the meeting. Accordingly, the first defendant’s representatives agreed that the matters raised would be considered subsequently and a decision made by early February 2015.

I refer to parts of the Response Document below when considering issues of proportionality. But I note at this stage that, although it continued to make complaints about bias and the alleged absence of documentation, it dealt – for the first time – with many of the detailed allegations against the claimant. What is more, it contained a number of important admissions. On a consideration of this material, both Mr West and Mr Lees came to the view that many of the allegations were not disputed in fact by the claimant, and that the Response Document was principally an explanation of the circumstances in which they had come about.

We know that this was their reaction from the report which Mr West produced for the purposes of the first decision. That is the ‘rolling report’ to which I have previously referred at paragraphs 15 and 16 above. It is plain on its face that this report was produced in stages over this period; Mr Dixon’s submission that the claimant did not accept that this was a contemporaneous document was one of the issues of fact which he sought to raise in his submissions, but there was nothing to support such a conclusion. The report considered four possible outcomes of the investigation. Option 1 was to allow the claimant to return to bell ringing at the Cathedral with no restrictions. Option 2 was to allow the claimant to return within new guidelines set for all ringers. Option 3 was to allow him to return with a limited role, in particular not having any role in the training of young ringers under 18 years old and no unsupervised contact with young ringers while undertaking Cathedral activities. Option 4 was that he was not permitted to continue as a member of the Guild of Bell Ringers at Worcester Cathedral and not permitted to ring at the Cathedral.

Mr West noted that, if there was no case to answer and the allegations were unfounded, then Option 2 was the right answer. If there was a case to answer then he thought Option 3 was a possibility, which was the option suggested by Mr Lees. But Mr West went on:

“What concerns me about Option 3 is the fact that the relationship between Mr Regan and TH had completely broken down and made worse by this process. It is highly likely that he would not be welcome back by a number of members of the Guild. It would also he very difficult for us to manage the risk without the co-operation of the Officers of the Guild. There is also the point made by Mr Regan that no member of the Guild at Worcester Cathedral can ring without being involved in the teaching of young ringers, as we are a teaching centre. As you know I find this difficult to understand, as what we are suggesting here is the fact that there should be no unsupervised contact with young ringers, which is different from being in the presence of young ringers in a non-supervisory role.”

Mr West’s report then referred to a meeting which took place between Canon Pettersen, Mr West and the LADO, Mr John Hancock, on 4 February 2015. The LADO confirmed that he did not consider the investigation procedure to be flawed or prejudiced in any way. Although there was no evidence of a criminal nature, there was a pattern of behaviour that concerned the LADO, whose opinion was that the claimant’s behaviour was not excusable. He said that “any reasonable person would understand the boundaries and from his submission TH recognised that he was in a position of trust. Mr Hancock was also of the opinion that from his submission, TH had shown no understanding or acknowledgement of his behaviour.”

Mr West and the LADO agreed that all four allegations (as noted in Mrs Johnson’s letter to the claimant’s then solicitors at paragraph 35 above) had been substantiated and that there was a risk to children and young people under 18 which had to be managed. The LADO recognised that this would not be easy “due to the nature of the space within the tower. The safeguarding of young ringers outside the Cathedral through association with TH would also be very difficult to manage. Mr Hancock therefore considered that the only option to adequately provide safeguarding to young ringers was that TH should no longer be permitted to ring at the Cathedral. This was his recommendation.” It was recognised that the first defendant could not stop the claimant from ringing at other churches within the Diocese of Worcester or beyond.

On 4 February 2015, following this meeting and the advice from the LADO, Canon Pettersen wrote to the claimant, on behalf of the first defendant, informing the claimant of the outcome of the meeting. This was the first decision. The letter said:

“Given that you have posed a risk to those ringers and learners of ringing under the age of 18 years at Worcester Cathedral, I, on behalf of the Chapter of Worcester Cathedral, have accepted the strong advice of the LADO concerning the management of this risk. I have accepted his advice that, in order adequately to safeguard people under the age of 18 years who ring at Worcester Cathedral, and further to manage any risk beyond the Cathedral to the same persons under 18 years by association with you, Worcester Cathedral removes, with immediate effect, any permissions given to you to continue as a member of the Guild of Bell Ringers of Worcester Cathedral, or to ring, however infrequently and in whatever capacity, at Worcester Cathedral. This decision which is made on the basis of the strong and unanimous advice of the Cathedral’s DOS and Worcestershire County Council’s LADO, is final.”

Thereafter, on 17 February 2015, the LADO produced a report which confirmed, amongst other things, that:

The report went on:

“What is not in dispute is that TH has used his position of trust within the Bell Ringing Guild to enter into relationships with young people which have been continued beyond the arena of the Guild and the Cathedral. These relationships are not appropriate for a person with a position of trust. TH’s motivation for developing these relationships with young people cannot be known. TH rejects the idea that his motives are ‘improper’. There are nonetheless no ‘proper’ motivations for using a position of trust in this way. The correct degree of caution that should be exercised by a child protection professional in a situation such as this therefore is to consider any risks that a pattern of behaviour could indicate. These risks must therefore necessarily include the possibility that a motivation to cause harm to the young people, including a sexual motivation, could be a feature.”

The report added that there was a risk to children and that the crossing of personal/professional boundaries was not explained or mitigated and “the fact that explicit advice given about being alone with young people has not been followed is particularly concerning in relation to interpreting the behaviour.”

The LADO report considered the various options open to the first defendant, the first three of which involved the claimant returning to bell ringing at Worcester Cathedral in one way or another. Option 4 was that the claimant not be prohibited from continuing as a member of the Guild and not permitted to ring at the Cathedral. The LADO report confirmed that he had advised the first defendant that Option 4 “was the only appropriate option to safeguard children and young people from the risks that TH may pose.”

In February and March 2015, there was correspondence between the claimant and Canon Pettersen, and then between the claimant’s solicitors and the first defendant’s solicitors, concerning the first decision. There were a number of threats to bring judicial review proceedings and, on 25 March 2015, a pre-action letter was sent. However, no such proceedings were commenced.

During the middle part of 2015, there was ongoing correspondence in respect of the conditions under which the claimant might be permitted to ring in churches in the Diocese other than the Cathedral. That was the responsibility of the second defendant. There were a number of meetings and negotiations between the parties about this.

On 12 June 2015, the second defendant wrote to the claimant about these continuing negotiations (which were being undertaken on the second defendant’s behalf by Mr Lees). The second defendant said:

“If an agreement is not able to be reached with you, and I am still hopeful one may, then I will need to send a recommendation out to incumbents and priests in charge in order to have managed the risk in light of the outcome of the investigation carried out by the Cathedral. I therefore enclose a copy of the Safeguarding Notification that I will be sending to incumbents and priests in charge in the Diocese of Worcester unless an agreement can reached.”

That safeguarding notification, which would have gone to every church in the Diocese, said that, whilst any decision made in respect of the claimant was a matter for the individual incumbent, “my recommendation is that he should not be permitted to be involved in any activity where he is directly caring for, teaching, training or supervising children or young people under the age of 18 years (including, in particular, bell ringing).”

On 28 July 2015, the second defendant wrote to the claimant enclosing a draft safeguarding agreement (the terms of which had been the subject of considerable negotiations). The second defendant said:

“The purpose of the Agreement is to protect children and vulnerable adults, while also ensuring that you do not find yourself in a position where you might be wrongly accused of any offence.

Under the Agreement, you will be able to continue ringing in churches in the diocese (excluding Worcester Cathedral which is already the subject of a decision by the Cathedral), subject in each case to the permission of the incumbent. The Agreement also sets out some conditions which attach to your ringing. I understand that Hilary [Higton, the new safeguarding officer] has discussed the need for these conditions with you. The Agreement will be reviewed with you after three months.”

On 30 July 2015, the claimant wrote back to the second defendant saying that he would “most reluctantly and dutifully” sign the agreement and would comply with the second defendant’s instructions “until the judicial review process has been completed”.

On 25 September 2015 (signed off on 12 October 2015) there was a further report by the LADO concerning the claimant. This arose because of an ongoing police investigation over the summer, in which (according to the LADO) the claimant made a number of potentially significant admissions in interview. Some of these were similar to those made in the claimant’s Response Document of January; some appeared to go further, including an admission that the claimant “had feelings for D”.

The report also set out some of the information that the police had obtained from the relevant children. This was very similar to the evidence they had previously given to Mrs Johnson, and included detailed complaints from B and D. The police concluded that no actions had amounted to a crime, although their investigation did confirm “inappropriate and misguided behaviour”. Again the LADO report focused on the claimant’s abuse of his position of trust to enter into relationships using social media and meetings outside the bell ringing Guild. It noted that the claimant did not consider himself to be restricted by his position of trust and that the attitude that he displayed during his contact with the police, and his interactions with the church, “have confirmed that he is not displaying insight into, or contrition for, his behaviour.” The report concluded that the material from the claimant’s police interview “shows a clear sexual interest in young people. These issues put together confirm that the Church’s actions are proportionate.”

These judicial review proceedings were commenced on 2 October 2015. On 11 November 2015 Beverley Lang J ordered that the claim be listed for a ‘rolled-up hearing’ and made timetabling directions.

ISSUE 1: THE JURISDICTION ISSUE: DO THESE DECISIONS TRIGGER A CLAIM UNDER ARTICLE 8 AND/OR ARE THEY AMENABLE TO JUDICIAL REVIEW?

The Law/Section 6 HRA and Article 8

The relevant parts of Section 6 of the Human Rights Act provide:

“6.

Acts of public authorities.

(1)

It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2)

Subsection (1) does not apply to an act if—

(a)

as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b)

in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

(3)

In this section “public authority” includes—

(a)

a court or tribunal, and

(b)

any person certain of whose functions are functions of a public nature,

but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.

…

(5)

In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.”

S.6 provides the necessary gateway to Article 8 ECHR (the only Convention right said by the claimant to be engaged in this case).

Accordingly, in order for s.6, and therefore Article 8, to be triggered in this case, the court has to ask three questions:

I deal with questions (a) and (b) together because, in the present case, it is accepted by Mr Dixon that neither the Chapter (the first defendant) nor the Bishop (the second defendant) could be said to be ‘core’ public authorities. Given the terms of the speech of Lord Nicholls of Birkenhead in Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Walbank and Another [2003] UKHL 37, I consider that that concession is properly made. The issue is therefore whether the defendants in the present case are ‘hybrid’ public authorities, a distinction also made by Lord Nicholls in Aston Cantlow.

The relevant passages in his speech are these:

“9.

In a modern developed state governmental functions extend far beyond maintenance of law and order and defence of the realm. Further, the manner in which wide ranging governmental functions are discharged varies considerably. In the interests of efficiency and economy, and for other reasons, functions of a governmental nature are frequently discharged by non-governmental bodies. Sometimes this will be a consequence of privatisation, sometimes not. One obvious example is the running of prisons by commercial organisations. Another is the discharge of regulatory functions by organisations in the private sector, for instance, the Law Society. Section 6(3)(b) gathers this type of case into the embrace of section 6 by including within the phrase ‘public authority’ any person whose functions include ‘functions of a public nature’. This extension of the expression ‘public authority’ does not apply to a person if the nature of the act in question is ‘private’.

10.

Again, the statute does not amplify what the expression ‘public’ and its counterpart ‘private’ mean in this context. But, here also, given the statutory context already mentioned and the repetition of the description ‘public’, essentially the contrast being drawn is between functions of a governmental nature and functions, or acts, which are not of that nature. I stress, however, that this is no more than a useful guide. The phrase used in the Act is public function, not governmental function.

11.

Unlike a core public authority, a ‘hybrid’ public authority, exercising both public functions and non-public functions, is not absolutely disabled from having Convention rights. A hybrid public authority is not a public authority in respect of an act of a private nature. Here again, as with section 6(1), this feature throws some light on the approach to be adopted when interpreting section 6(3)(b). Giving a generously wide scope to the expression ‘public function’ in section 6(3)(b) will further the statutory aim of promoting the observance of human rights values without depriving the bodies in question of the ability themselves to rely on Convention rights when necessary.

12.

What, then, is the touchstone to be used in deciding whether a function is public for this purpose? Clearly there is no single test of universal application. There cannot be, given the diverse nature of governmental functions and the variety of means by which these functions are discharged today. Factors to be taken into account include the extent to which in carrying out the relevant function the body is publicly funded, or is exercising statutory powers, or is taking the place of central government or local authorities, or is providing a public service.

…

16.

I turn next to consider whether a parochial church council is a hybrid public authority. For this purpose it is not necessary to analyse each of the functions of a parochial church council and see if any of them is a public function. What matters is whether the particular act done by the plaintiff council of which complaint is made is a private act as contrasted with the discharge of a public function. The impugned act is enforcement of Mr and Mrs Wallbank’s liability, as lay rectors, for the repair of the chancel of the church of St John the Baptist at Aston Cantlow. As I see it, the only respect in which there is any ‘public’ involvement is that parishioners have certain rights to attend church services and in respect of marriage and burial services. To that extent the state of repair of the church building may be said to affect rights of the public. But I do not think this suffices to characterise actions taken by the parochial church council for the repair of the church as ‘public’. If a parochial church council enters into a contract with a builder for the repair of the chancel arch, that could be hardly be described as a public act. Likewise when a parochial church council enforces, in accordance with the provisions of the Chancel Repairs Act 1932, a burdensome incident attached to the ownership of certain pieces of land: there is nothing particularly ‘public’ about this. This is no more a public act than is the enforcement of a restrictive covenant of which church land has the benefit.”

In addition, I was referred to paragraphs 59-63 of the speech of Lord Hope in the same case, in which he concluded that the PCC was not a ‘core’ public authority and that the question as to whether it was a ‘hybrid’ public authority “must depend on the facts of each case” and in particular the function being exercised that was in issue in the proceedings.

The other significant authority relevant to the jurisdiction issue is YL v Birmingham City Council and Others [2007] UKHL 27. In that case, a company running a private care home was found not to be performing a function of a public nature for the purposes of s.6(3) HRA. The reasons why a majority of the House of Lords came to that conclusion are expressed in rather different ways in their speeches. Thus:

It seems to me that there are a number of factors which, by reference to the principles outlined in Aston Cantlow and YL, the court should consider in determining whether or not the defendants in this case were a ‘hybrid’ public authority under s.6(3)(b) HRA. They are:

Analysis

I start with a brief consideration of the rights and obligations of the individual defendants. The Cathedrals Measure of 1999 (“the 1999 Measure”) provides for four bodies to be established in respect of each Cathedral, including the Chapter. Pursuant to Section 4(8) the Chapter is obliged to “direct and oversee the administration of the affairs of the Cathedral”. It is common ground that, in this case, the first defendant has the power to regulate access to and from the Cathedral and associated buildings.

Section 6 of the 1999 Measure also provides separately for the Bishop. Halsbury’s Laws of England (Ecclesiastical Law Volume 34, 2011) states at paragraph 177 that the Bishop is a corporation sole. Section 6 of the 1999 Measure identifies his responsibility for overseeing divine worship and pastoral care. He is the visitor of the Cathedral. His responsibility extends throughout his diocese, a fact confirmed by Canon C18.

Having regard to those functions and the facts of this case, I have concluded that the answer to each of the questions noted in paragraph 64 above is unfavourable to the claimant, because each points firmly to the conclusion that neither of the defendants is a ‘hybrid’ public authority. Thus:

On that basis, I conclude that neither of the defendants is a ‘hybrid’ public authority and s.6 of the HRA is not triggered.

However, I note that in Aston Cantlow it was stressed that what may matter most was the function being performed. Was the act in question a public or a private act? It is therefore necessary to consider that question separately, particularly in the light of the claimant’s submission that the function being performed by the defendants was a safeguarding function which was, as Mr Dixon put it, “something very akin to a public protection type of exercise”. He said that, because the defendants’ function was safeguarding then, even if it was limited to the Cathedral or the wider Diocese, it was still a public function.

On behalf of the defendants, Ms Hannett submitted that the claimant’s submission was built on a fundamental misconception. She said that the function was not to be confused with either the act complained of, or the reason for the decision taken. In my judgment, for the reasons set out below, Ms Hannett’s submissions were correct.

In relation to the first decision, the decision itself – the act – was to rescind the permission previously given by the first defendant to the claimant to enter the Cathedral for the purposes of ringing bells. That decision was taken as part of the first defendant’s function of controlling who entered the Cathedral and for what purpose. Neither the function nor the act could possibly be said to be anything other than private. It was the exercise of a proprietary right. The reason for the exercise of the function in this particular way on this particular occasion was the concern over the claimant’s prior conduct with children. But that reason cannot be mistaken for either the function being performed by the first defendant, nor the act or decision that it took.

Similarly, the decision of the second defendant in July (if that is what it is) related to the proper running of the Diocese from a pastoral point of view. That was an internal matter for the Church of England in the Worcester Diocese, at the direction of the second defendant. Again it is important not to confuse the function and the act on the one hand, with the reasons for the decision on the other.

Accordingly, I do not consider that the first or the second defendant is a ‘hybrid’ public authority within the meaning of s.6 of the HRA. The relevant act was a private act. Thus the duty in section 6(1) HRA does not apply, and Article 8 is not triggered.

The Law/Judicial Review

The authorities stress that amenability to judicial review is, at least technically, a separate question to the public authority point (see paragraph 12 of the speech of Lord Bingham in YL).

The relevant principles, to the extent that they are different to those noted above, at least in emphasis, can be summarised as follows:

At the outset, it is important to address (and reject) three elements of the claimant’s submissions on this topic. First, the fact that the decisions in question are said to have had a significant impact on the claimant (and I accept that they have) is irrelevant to the question of amenability: see R v Chief Rabbi (Ex parte Wachmann) [1992] 1 WLR 1037, at 1041-1042. Secondly, the argument that judicial review must be available because otherwise a claimant would be left without a remedy is also immaterial, because the administrative court is not there simply to fill in the gaps left by statute or the common law: see pages 932 and 933 of the judgment of Hoffmann LJ in Aga Khan, referred to above. Thirdly, I should also say that the fact that the High Court may have the jurisdiction to review the decisions of ecclesiastical courts (R v Chancellor of St Edmundsbury and Ipswich [1948] 1 KB 195) is also irrelevant, since that is not what the court is being asked to do in the present case.

Analysis

In my view, these claims are not amenable to judicial review. That is because:

During the course of his submissions on this point, Mr Dixon argued that these decisions were not concerned with religious worship or discipline (which would definitely lie outside the remit of the administrative court). I accept that submission: although bell-ringing may have at its origin the calling of the faithful to prayer, this must now be regarded as only one of its functions. But I agree with Ms Hannett that the fact that these decisions are not concerned with religious worship or discipline does not automatically establish amenability, because otherwise it could be said that any decision by the Church of England which was not concerned with religious practice was amenable to judicial review, and that is clean contrary to the decision in Aston Cantlow.

Mr Dixon also argued that the analogy with sporting associations was not apt, because the Church has a hierarchical structure and there was an element of deference which undermined any suggestion of a voluntary submission to jurisdiction. I am not persuaded that this makes any difference at all to my analysis. Sporting associations such as the Jockey Club are often extremely hierarchical and, whilst the degree of deference may be different, it will still exist. The mere fact that the second defendant is a Bishop and the first defendant is the Chapter of the Cathedral does not, in my judgment, displace the analogy with bodies regulating leisure activities.

For these reasons, I consider that these claims concern private decisions which affect and restrict the claimant’s ability to perform his hobby in the way that he would like. I do not consider that s.6 HRA is engaged and I do not think that these decisions are amenable to judicial review. In the light of those conclusions, I refuse the claimant permission to bring these judicial review proceedings.

However, in case I am wrong about that, I now go on to consider the next two issues which could, depending on my findings, also constitute knock-out blows to the claimant’s claims, and should also therefore be dealt with at the permission stage.

ISSUE 2: IS THE CLAIM IN RESPECT OF THE FIRST DECISION OUT OF TIME?

The general chronology is apparent from paragraphs 24-57 above. The key dates for limitation purposes are as follows:

There can be no doubt that the claim for judicial review in respect of the first decision was made almost eight months after that decision was taken and communicated to the claimant. The limitation period for a judicial review claim is three months. Accordingly, the claimant was at least five months late in bringing the judicial review claim in respect of the first decision.

The argument advanced in support of the claimant’s case that the court should not rule that the claim in respect of the first decision was out of time goes something like this. It is said that the first and second defendants are simply different parts of the Church of England and so they are all part of one legal entity. It is said that it would have been premature to start any proceedings in respect of the first decision until the position had been sorted out in respect of the agreement relating to the other churches in the Worcester Diocese. It is said that the decision in respect of the other churches may well have impacted upon the first decision, and thus it was reasonable and appropriate for the claimant to wait until after he had signed the agreement in July before issuing judicial review proceedings.

In my judgment, that argument is hopeless for a variety of reasons.

First, it is clear beyond doubt that the first defendant is a separate legal entity from the Bishop, the second defendant. The 1999 Measure makes that distinction clear. The Bishop is a corporation sole, which the Chapter most certainly is not. Furthermore, Aston Cantlow is authority for the proposition that it is wrong to suggest that the Church of England is, in some way, one legal entity.

Secondly, even if the first and second defendants were part of the same legal entity, or even if that point was irrelevant, there can be no doubt that, as a matter of fact, the second decision did not affect, and was never going to affect, the first decision. As noted in paragraph 82 above, the claimant was repeatedly told that the prohibition on bell-ringing in Worcester Cathedral was final and that the process of negotiation in which the second defendant was involved in May was a different process, dealing with a different matter. There can be no question of any confusion. It is untenable to say now that the claimant thought that the second decision might affect the first, since he was told in terms at the time that that was not and would not be the case.

In his oral argument in reply, Mr Dixon raised, for the first time, the suggestion that, pursuant to Section 6(6) of the 1999 Measure, the second defendant as a visitor to the Chapter could have had an impact on the first decision. But it is plain that this power related only to “the due observance of the constitution and statute” and could have had nothing to do with the first defendant’s decision in this case, which was concerned with who might be permitted access to the Cathedral tower to ring the bells.

In essence, the claimant is arguing for some sort of ‘continuing act’, in which what matters for limitation purposes is the final act in an ongoing debate or dispute. I can see no basis for importing such a concept, which can arise for example in limitation disputes arising out of professional negligence disputes, into the public law arena. What matters for public law purposes is the decision taken by the relevant body, and the date of that decision. This was not an ongoing interlinked process, but two separate decisions taken by two separate decision-makers (now two separate defendants), each within their own sphere of responsibility. The second decision could have had no bearing on the first, a point that was explained in clear terms at the time.

In those circumstances, I find that the claim for judicial review in respect of the first decision is out of time. There is no basis on the material before me on which I could or should extend time. There is no explanation, notwithstanding the clear nature of the defendants’ solicitors’ warning that the first decision was final and that the process in respect of the second decision was separate, as to how and why the judicial review proceedings were not commenced in March or April 2015, following the pre-action letter. For that second reason, I refuse permission to bring claims arising in respect of the first decision.

ISSUE 3: IS THERE IN FACT A SECOND DECISION?

I can deal with this shortly. I have set out at paragraph 53 above the letter of 28 July 2015 from the second defendant. As noted, that letter came at the end of a long period of discussion and negotiation as to the appropriate conditions to be attached to the lifting of the suspension on the claimant. The claimant took a full part in those discussions. The letter invited the claimant to sign the agreement. The claimant did so. Although his agreement was caveated to the effect that it was given only until the judicial review proceedings were concluded, that can only have been a reference to the judicial review proceedings in respect of the first decision, since those were the only judicial review proceedings which had been suggested at that stage.

Accordingly, at the outset of the hearing, I was far from persuaded that there was a second decision amenable to judicial review at all. There were negotiations and an agreement was reached. The claimant signed that agreement. It was difficult to see how, in ordinary public law terms, there was a decision which could now be challenged.

Mr Dixon raised the point that, given the nature and status of the second defendant, the claimant felt obliged to defer to his decision and to sign the agreement. I accept that that finds an echo in the claimant’s letter of 30 July 2015 when he returned the signed agreement. But the claimant’s alleged deference did not prevent him from making a number of serious allegations against a number of people involved in this process, who were referred to in the hearing as the second defendant’s “agents”. Neither did any notion of deference prevent the claimant from negotiating the terms of the agreement with others representing the second defendant.

Ms Hannett’s approach to this issue was more straightforward. She indicated that she would be reluctant for the court to find that there was no decision in July because of the terms of the second defendant’s letter of 12 June 2015 (paragraph 52 above). Her concession was to this effect: that because the decision in July 2014 to invite the claimant to sign the agreement cannot be divorced from the worse option that would have eventuated (as per the 12 June letter) if he had not agreed, it is appropriate to consider the 28 July letter, albeit worded as an invitation, as a decision for judicial review purposes. I have concluded, not without some misgivings, that this is an equitable concession.

Accordingly, although the claim in respect of the first decision was out of time and no extension is appropriate, I find that the claim in respect of the second decision does relate to a decision so, at least on that ground, it can be challenged. Accordingly, it is only if I am wrong on both Issue 1 and Issue 2, that I would be obliged to grant permission in respect of the first decision. Permission would be appropriate in respect of the second decision if I am wrong on Issue 1, because I have decided Issue 3 in the claimant’s favour.

At the end of the first day of the hearing, Ms Hannett asked me to decide the permission/jurisdiction points and dispose of the case at that stage. However, Mr Dixon urged me not to do that, and to consider the substantive issues as well, because he said that his submissions on the substance might affect how I deal with the jurisdiction issues. In those circumstances, as I explained, I had no real option but to continue to a second day to hear the substantive arguments. I should however record that, to the limited extent that they were relevant, Mr Dixon’s submissions on the merits only confirmed my view that this was not a case which engaged s.6 HRA or was suitable for judicial review.

ISSUE 4: THE SUBSTANTIVE ISSUE: HAS AN ARTICLE 8 OR JUDICIAL REVIEW CLAIM BEEN MADE OUT?

The Law

Article 8 of the EHCR is in these terms:

“Right to respect for private and family life

1

Everyone has the right to respect for his private and family life, his home and his correspondence.

2

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

In R (Razar) v Secretary of State for the Home Department [2004] 2 AC 368, Lord Bingham of Cornhill suggested, at paragraph 17 of his speech, that the engagement of Article 8 “depended upon an affirmative answer to two questions, namely whether there had been or would be an interference by a public authority with the exercise of a person’s right to respect for his private or family life and, if so, whether it had had, or would have, consequences of such gravity as potentially to engage the operation of the Article.” Accordingly, assuming I am wrong on Issues 1 and 2, I must decide whether there has been an interference with an Article 8 right and, if so, whether the consequences of that interference are such that Article 8 engaged.

It seems to me that the relevant questions for the purposes of that enquiry are:

Has There Been An Interference With An Article 8 Right?

Article 8 is concerned with the right to a private life. In support of his general submission that Article 8 was engaged here, Mr Dixon sought to rely on four European authorities which stressed the broad definition given to this concept. They were Niemietz v Germany [1992] 16 E.H.R.R. 97, a case about a search warrant issued in respect of a lawyer’s offices; Sidabras v Lithuania [2006] 42 E.H.R.R. 6, a case about restrictions placed on former KGB agents to prevent them from applying for public sector and various private sector posts; Turek v Slovakia [2007] 44 E.H.R.R. 41, a case about a negative security clearance; and Von Hannover v Germany [2005] 40 E.H.R.R. 1, a claim brought by Princess Caroline of Monaco about repeated publications of photographs of herself in German newspapers. Beyond the court’s reluctance to give a hard-edged definition to the concept of a private life, these cases were all disposed of on their own particular facts which, so it seems to me, have little or no connection with the facts of the present case.

Although they were not referred to orally, Mr Dixon’s written skeleton argument also referred to a number of domestic cases concerned with employment, Enhanced Criminal Record Checks, and the like. The potential for an interference with an Article 8 right in such cases was, with respect, relatively obvious.

At no time, either orally or in writing, did Mr Dixon identify any authority (European or domestic) which was concerned with restrictions being placed on the performance of hobbies or pastimes, and which were found to engage Article 8. It was Ms Hannett’s first submission on this point that the absence of any such authority was telling, because she said it was plain that the placing of restrictions on a hobby or pastime did not engage an Article 8 right: hence the absence of authority.

In my view, Ms Hannett’s submission was correct. Although I accept that the claimant was an enthusiastic bell-ringer who spent a large amount of his free time engaged in bell-ringing in one form or another, those factors do not detract from the simple proposition that this was a hobby or pastime. I do not consider that Article 8 is engaged in such a case.

Mr Dixon argued, by reference to the European cases noted above, that Article 8 was engaged because this was a decision which significantly affected the claimant’s ability to continue relationships. The argument was, that because he spent so much time bell-ringing, the restrictions imposed by the first and second decisions inevitably had an adverse effect on his personal relationships.

Again, however, I think Ms Hannett is right to say that the decisions themselves do not prevent him from continuing any personal relationships. The first decision prevents him from ringing bells in the Cathedral; the second decision places limits on his conduct regarding those under 18 when on church premises in the rest of the Diocese. The decisions do not impact on his relationships at all (except in respect of children, which was the point of the restrictions in the first place). And even if it could be said that these decisions did indirectly have some impact on his personal relationships, I find that such impact was limited and was not a consequence of such gravity that Article 8 was engaged.

The third way in which Mr Dixon sought to persuade me that an Article 8 right was engaged was by reference to the effect on the claimants’ reputation that these decisions have had. But there are a number of difficulties with that submission.

First, the decisions themselves have nothing to do with the claimant’s reputation. They are merely a restriction on the carrying out of the claimant’s hobby. If the restriction on the carrying out of that hobby was not itself covered by Article 8 (and I consider that it was not), then a claim about the effect of the restriction on the claimant’s reputation, if any, cannot be brought under Article 8 either.

Secondly, even if damage to reputation were relevant, then Axel Springer AG v Germany (2012) 55 E.H.R.R.6 is authority for the proposition that there has to be a certain level of seriousness before Article 8 is engaged. Here, any damage to the claimant’s reputation is very limited, because these decisions are known only to those very few persons listed in Ms Higton’s witness statement. That is a very limited class of people.

Furthermore, Axel Springer is also authority for the proposition that a claimant cannot rely on damage to his or her reputation if that damage is the foreseeable consequence of his own actions. In my view, for the reasons noted in Section 8.4 below, that is what has happened here.

Accordingly, for these reasons, I do not consider that the claimant’s Article 8 rights are engaged as a consequence of the first or the second decisions in this case.

If Article 8 Is Engaged, Was The Interference Justified?

Justification arises out of Article 8(2). The issue is whether the interference was justified so as to protect the rights and freedoms of others. In this case, those ‘others’ were the children in respect of whom the claimant was investigated, and those other children with whom he may, in future, come into contact as a bell-ringer.

Nowhere in the skeleton argument or the oral submissions put forward on behalf of the claimant was there any suggestion that the interference was not justified. In circumstances where the LADO expressly confirmed, not once but twice, that these decisions were justified, it seems to me impossible for the claimant to say that the interference with his Article 8 right (if that is what it was) was not justified and proportionate. That too would bring an end to any consideration of Article 8. However, in case that general answer is insufficient, and it is necessary to deal in more detail with the question of proportionality, I do so first by reference to the findings of fact made against the claimant, and secondly by reference to the sanctions imposed.

Were The Findings Of Fact Proportionate?

Counsel were agreed that the test that I must apply was that outlined in R (SB) v Governors of Denbigh High School [2007] 1 AC 100, where at paragraph 30 Lord Bingham said:

“it is clear that the court’s approach to an issue of proportionality under the Convention must go beyond that traditionally adopted to judicial review in a domestic setting…There is no shift to a merits review, but the intensity of review is greater than was previously appropriate, and greater even than the heightened scrutiny test…The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time: Wilson v First County Trust No. 2 [2004] 1 AC 816 paragraph 62-67. Proportionality must be judged objectively, by the court.”

The appropriate starting point is the letter sent by Mrs Johnson on 9 September 2014 (paragraph 35 above). This identified the three main issues: being alone with young ringers having been advised not to be; meeting some of the bell ringers socially at his and their homes; and organising bell ringing outings without the appropriate consent. In addition, the letter identified a fourth concern, about the Facebook contact.

As noted above, those three concerns, coupled with the Facebook issue, formed the agenda for the unsuccessful meeting on 10 November 2014 (paragraph 38 above). By that time, two additional concerns had been raised: one about the much earlier incident at Buckfast Abbey, and one about another trip. Once the Concerns Document had been provided to the claimant in December 2014, he responded in detail and provided his written Response Document which ran to 20 pages at the meeting on 20 January 2015.

For present purposes, and to be fair to the claimant, I focus on the three main concerns and the Facebook issue, in respect of which the claimant responded in detail on 20 January 2015. The two other matters (Buckfast Abbey and the other trip) were not in the original letter of 9 September and seem to me to be of less relevance (Footnote: ²).

In the letter of 4 February 2015 (the first decision, paragraph 46 above) Canon Pettersen said that each of these four allegations had been made out. The question is whether that finding of fact was proportionate. In my view, it was not only proportionate but, save in one respect, it was the only conclusion which the Canon could reasonably have reached. I set out the reasons for my views below.

Allegation 1 was that, having been told not to, the claimant spent time alone with young ringers. The claimant’s own Response Document admitted that he spent time alone with M even though, as he said, “I was aware of the general prohibition on adults being alone in private with youngsters”. Moreover, during the subsequent police investigation, the LADO document records the claimant admitting to the police spending time alone with M.

Mr Dixon had a separate submission to make about M, to the effect that, although Mr Regan said in his email of 28 July 2014 that “M was central”, the evidence showed that there was no basis for any concern about the claimant’s dealings with M and that, in any event, M’s statement to Mrs Johnson made no criticisms or allegations against the claimant at all.

There are two answers to that. The first is that the mere fact that Mr Regan thought that M was central prior to the investigation did not mean that at the conclusion of the investigation, the evidence would bear that out. As is apparent from the statements, the investigation showed that the damning evidence of B and D was much more important. That is why the investigation was held in the first place: to get to the truth. The second answer is that, in respect of the particular occasion when the claimant was alone with M, that allegation was confirmed in the final paragraph of the first page of M’s statement. Accordingly, contrary to the claimant’s submissions, the investigation did establish the claimant’s inappropriate contact with M.

Allegation 2 was meeting young ringers socially. I have already referred to B’s witness statement in the investigation (paragraph 33(c) above) that the claimant went to B’s house or B went to his house on at least four occasions. Again, that point was subsequently admitted by the claimant in his police interview.

Allegation 3 went to organising outings without appropriate consent. This was of course a rather different allegation because it did not turn on the evidence of the children. It was an allegation made by Mr Regan in his email of 26 July 2014 (paragraph 29 above) and would have been something that only Mr Regan, as Master, would have been likely to have discovered. It was therefore a conclusion which Canon Pettersen was entitled to reach, although (unlike the other three conclusions) because that appears to be the extent of the evidence in support of Allegation 3, it was not inevitable.

Finally there was the question of Facebook. There was a good deal of evidence of vast amounts of Facebook messaging between the claimant and some of the children. The witness statements of both D and I make reference to it. In respect of D there were alleged to be 30,000 separate messages.

Despite that, I agree with Ms Hannett that the real concerns arose in respect of the Facebook messaging between the claimant and B. At the time of this messaging, B was a 14/15 year old girl, whilst the claimant was in his late 30’s. Yet there is extensive messaging about the romantic relationships between the children; intimate nicknames; and at least one request to B to watch a video at the claimant’s house.

Most troubling of all is the way in which, once Mr Regan’s concerns had become apparent at the start of 2014, the claimant continued to message B and referred, in a light-hearted way, to Mr Regan and the safeguarding concerns that he was raising. It was an attempt to get B on side. This was entirely inappropriate and gives the lie to the suggestion that the claimant did not know that he was doing something that he should not have done.

Stepping back, therefore, it is unarguable that the concerns raised originally and maintained throughout the investigation were made out on the evidence. And if that was not enough, then there is the report of LADO dated 17 February 2015 (paragraph 47 above) which independently supported the first defendant’s conclusion that the allegations had been made out.

It seems to me that the fact that the LADO was involved by the first defendant in accordance with the Church’s safeguarding policy; the fact the LADO gave advice throughout the investigation; and the fact that the first defendant acted on the advice of the LADO throughout, makes it an impossible task for the claimant now to say that the findings against him were disproportionate.

Whilst of course the second LADO report dated 25 September 2015 was not in place at the time of the first or indeed the second decisions, it would be artificial for the court to ignore it altogether. That is particularly so because it is entirely consistent with the first LADO report and the decisions that were made by the defendants. The second LADO report said in terms that the subsequent police investigation confirmed the correctness of both the decisions taken by the defendants. Again that is plainly a relevant matter for the court to take into account when considering proportionality.

Mr Dixon made no other submission about the proportionality of the findings of fact against the claimant. His only other point, which appeared to be offered by way of mitigation, was to the effect that the claimant had never been given any instruction or training. That was a further contentious factual issue, because it is contrary to the evidence about the warnings that Mr Regan gave the claimant in February 2014. It is also contradicted by the claimant’s Facebook messages, which give the clear impression that he knew that what he was doing was contrary to what he had been advised.

For all these reasons, therefore, I have reached the firm conclusion that the findings of fact made against the claimant were proportionate. In all but one instance, they were inevitable.

Was The Sanction Proportionate?

The first decision barred the claimant from the Cathedral for the purposes of bell-ringing. The claimant says that that was disproportionate because it was a lifetime ban without the possibility of review. The claimant noted that, just before the hearing, the first defendant offered a review in July 2017, and so it was submitted on his behalf that this demonstrated that the first defendant knew that the original decision was disproportionate and was itself a reason for that decision to be quashed.

The first defendant did not accept that the sanction (let alone the findings of fact giving rise to it) was disproportionate and advanced a number of reasons why it was in fact a proportionate response. In particular three reasons were given for that stance, the first two of which were not disputed by the claimant.

The first was that the sanction followed the advice of the LADO. For the reasons already noted, it does not seem to me that the first defendant can be criticised for imposing the sanction that was advised by the LADO.

The second is the claimant’s lack of insight and his failure to accept that he had done anything wrong. That was apparent throughout his 20 page Response Document of 20 January 2015, and can also be gleaned from a number of the other documents, including the second LADO report. The example that Ms Hannett took was the claimant’s statement that he sent no inappropriate messages to B. I have already found that that was plainly wrong. Accordingly, I agree that, by reason of the lack of insight shown by the claimant, the sanction can be justified.

The only reason put forward by the first defendant to support the decision with which the claimant took strenuous issue was the suggestion that, because the Cathedral was a teaching centre, which involved the Guild working with a considerable number of young people, it was simply impractical for the claimant to be invited to ring the bells there under any circumstances. It was that point, said the first defendant, which distinguished the Cathedral, where there is a complete ban (by reference to the first decision) and the churches in the rest of the Diocese (whereby, pursuant to the second decision, the claimant is allowed to ring bells, subject to conditions).

The claimant’s first line of attack was that this was a justification arrived at after the event and formed no part of the decision-making process at the time. Accordingly, it was initially said that the court should ignore it, although that submission was subsequently modified, and it was suggested that the court should, at the very least, be very sceptical about it.

I find as a fact that the particular circumstances of the Cathedral and its place as a teaching centre was a factor that was expressly taken into account at the time of the first decision. Mr West’s running report (paragraphs 42-45 above) makes that point expressly when he explained how and why Option 3 was not practical. It was not therefore an “after the fact” justification.

At the end of his oral submissions, Mr Dixon’s attack had switched again, and it was now said that this was not something that was raised with the claimant at the time of the investigation. That seems to me to be irrelevant. This was not a matter that needed to be canvassed with the claimant: it was a matter for the decision-maker. It was a matter which Canon Pettersen was perfectly entitled to take into account when reaching his conclusions.

Furthermore, the claimant has belatedly commented on this aspect of the case and seems to suggest (although the passages in his third statement are far from clear) that the Cathedral is a teaching centre in a relatively limited way. So let us assume that, had this matter been raised with the claimant at the time of the investigation, this is what he would have said. I find that the comments in the third statement would have made no difference at all to the decision and the sanction imposed. Ultimately, a consideration of the particular position of the Cathedral, and the practicality of a lesser sanction, was a matter for Canon Pettersen, as the Warden.

Accordingly, for these reasons, I find that, in the particular circumstances of this case, the decision as to the sanction was proportionate. But whilst I accept that the offer of a review in July 2017 was not in any way an admission, it is in my view a humane procedure for the first defendant to adopt.

As to the second decision, I can be much quicker. It was not a total ban: far from it, it merely applied certain restrictions. Given that the findings of fact made as a result of the investigation were proportionate, so too were these restrictions. There are also the additional grounds of justification, equally applicable here, that these restrictions were in accordance with the advice from LADO, and justified by the claimant’s continuing lack of insight.

Accordingly, it cannot possibly be suggested that the second decision was disproportionate. I reject any suggestion to the contrary.

Judicial Review / Irrationality

The claimant has a separate claim for judicial review at common law, and it is convenient to deal with that here. By reference to paragraphs 52-54 of the judgment of Lord Mance in Kennedy v Charity Commission [2015] AC 455, Mr Dixon said that the relevant standard of review was, because of the nature of this case, more than a simple Wednesbury test of irrationality. He was unable to articulate precisely what that different test might be. However, that the claimant needed some sort of heightened test was made clear when he candidly accepted that, if the applicable test was just Wednesbury irrationality, “it would readily be concluded that the option (i.e. the complete ban at the Cathedral) was within the ambit of discretion.”

As I have said, it proved impossible to pin Mr Dixon down as to why he said that the test for judicial review was not the Wednesbury test in this particular case. However, ultimately that seemed to me to be irrelevant because, on any view, the standard of review could not be any more intensive than the test that I have already applied in respect of Article 8, in accordance with Lord Bingham’s judgment in Denbigh School.

In other words, because the Article 8 claim fails because, amongst other things, I have concluded that the findings of fact and the sanctions were proportionate, the judicial review claim cannot hope to succeed. Because I have found against the claimant in respect of every element of the alleged Article 8 claim, the alternative judicial review claim must also fail.

WAS THE FIRST DECISION UNLAWFUL BECAUSE IT WAS REACHED IN BREACH OF THE RULES OF NATURAL JUSTICE?

General

Three different attacks were mounted by the claimant in support of his contention that the investigation was procedurally flawed. They involved allegations of actual or apparent bias; predetermination; and inadequate disclosure. These all went to the first decision. There was no similar suite of criticisms of the second defendant or the second decision.

Mr Dixon relied on the Supreme Court decision in R (Osborn) v Parole Board [2014] AC 1115 (and in particular paragraph 65 of the judgment of Lord Kerr) in support of the proposition that considerations of natural justice have to be looked at by the court from scratch; they should not be viewed through the prism of whether the original decision-maker acted irrationally or not. I agree with that and Ms Hannett did not argue to the contrary. It is however important to note that, in any case where a breach of natural justice is alleged, the claimant has to establish, not only the breach, but that, on the balance of probabilities, the breach would have had a material effect on the outcome of the decision-making process. Alleged procedural unfairness does not exist in a vacuum.

Bias

In determining whether there is apparent bias on the part of a decision-maker, the test is whether the fair-minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility that the decision-maker was biased: see Porter v Magill [2002] 2 AC 357.

However, somewhat to my surprise, Mr Dixon said that his first proposition was that there was actual bias on the part of Canon Pettersen. Accordingly, I need to deal with that allegation first.

Canon Pettersen, as the Warden responsible for bell ringing at the Cathedral, obviously knew Mark Regan well. Mark Regan was the instigator of the investigation. It is said that Canon Pettersen was actually biased against the claimant because he would not offer counselling to the claimant, but either counselled or offered counselling to Mr Regan.

I was invited to find that this factual allegation had been substantiated by way of an inference to be drawn from an email sent by Mr West to Mrs Johnson on 14 August 2014 which said:

“I spoke to Canon Alvyn [Pettersen] yesterday about providing pastoral care for TH. He is giving some thought to whom the best person would be to provide this. He himself is too close to the matter.

I am sure he will come back to me very soon and we will then be able to offer some pastoral support to TH if he would like it.

Canon Alvyn will also talk to Mark Regan, as he knows him very well, to see if he needs any support.”

It was the claimant’s case that it should be inferred from this email that Canon Pettersen himself counselled or offered counselling to Mark Regan and, as a result, was actually biased against the claimant. It was also said that support for that interpretation comes from Canon Pettersen’s own email two days later, in which he talked about continuing to offer “support” to the bell ringers, including Mark Regan, whilst at the same time he was trying to make efforts to find a priest to support the claimant (despite the fact that the claimant “has little time for religion and priests”).

The allegation that Canon Pettersen counselled Mark Regan is the subject of direct evidence from Canon Pettersen. At paragraph 20 of Mr West’s statement, he records Canon Pettersen making the following verbatim comment on this subject:

“During the whole investigation I remained warden of bell ringers. During the same time, I did not provide pastoral support to Mark Regan or to his family, because I was aware that there was a possibility of a conflict of interests and the need to remain wholly impartial; nor did Mark and his family seek pastoral support from me as he and they were aware that that might have constituted a conflict of interests and have raised questions concerning any possible breach of impartiality. Both I and Mark and his family have been scrupulous in retaining impartiality.”

In the light of that, it is appropriate that I record my astonishment that it was being submitted that the court should infer from two emails that, contrary to Canon Pettersen’s own evidence, he provided Mark Regan with counselling. I assume it is suggested that I should do so on the basis that Canon Pettersen is lying. To invite the court to disbelieve the clear statement from Canon Pettersen is extraordinary enough; but to do so on the basis of an inference which plainly cannot be drawn from the emails (which do not even arguably suggest that Canon Pettersen himself offered or provided counselling to Mark Regan) indicates to me that the claimant (or more properly his advisors) have lost all sense of reality and propriety. There is not a shred of evidence of any actual bias whatsoever, and all the evidence points firmly the other way. Accordingly, I consider that this allegation was improperly raised.

I reach precisely the same conclusion on the alternative argument of apparent bias, since it relied on precisely the same (non-existent) ingredients. Mr Dixon accepted that the mere fact that Canon Pettersen knew Mark Regan was not enough to amount to apparent bias and he accepted that ‘something more’ was needed. He never identified what the ‘something more’ might be. Although he said that Mark Regan kick-started the investigation, and that he was a very powerful individual who some found intimidating, these points go nowhere since it could not be suggested that Mark Regan had any involvement in the investigation or the decision-making process.

I am left with the uncomfortable conclusion that these proceedings were commenced, at least in part, because of the hostility felt by the claimant towards Mark Regan. Of course I accept that these events have been difficult and upsetting for the claimant and I accept that he was inevitably going to regard Mr Regan as an enemy. But to make allegations of apparent bias against Canon Pettersen, simply because the investigation which the Canon had to consider was kick-started by Mr Regan, whom he knew, is misconceived. What seems to have happened is that the allegations of bias made by the claimant against Mark Regan during the investigation have now been transferred to Canon Pettersen for the purposes of this judicial review, without any further analysis. There is simply no basis for such a switch.

Finally I should say that the allegations of bias (which during the investigation the claimant repeatedly made against Mr Regan) were known to Canon Pettersen at the time of the first decision. He would therefore have had them in mind when he reached that decision. Again, it has not been shown that these matters might have made any difference.

For all these reasons, I dismiss the allegations of actual or apparent bias. I very much regret that they were ever raised.

Predetermination

There is no doubt that, if a decision-maker predetermines the outcome of the investigation before that investigation is completed, then he has predetermined the issue and will susceptible to an attack that he failed to comply with the rules of natural justice. It is a species of bias, but rather different in concept: see Lanes Group PLC v Galliford Try Infrastructure Ltd [2011] EWCA Civ. 1617, and paragraph 44 onwards of the judgment of Jackson LJ.

As with the allegations of bias, the central difficulty that the claimant has in relation to this allegation is that, although the criticisms of predetermination focus on Mark Regan, the decision-maker was Canon Pettersen, and there is nothing to suggest that he predetermined his decision of 4 February in any way.

At the hearing, reference was made to the meeting on 16 July 2014 at which the claimant’s activities were discussed (paragraph 26 above). I accept that the note of the meeting showed that Mr Regan, amongst others, had formed a dim view of the claimant’s activities with young bell ringers. But again Mr Regan did not reach either the first or the second decision.

In order to get round this difficulty, Mr Dixon sought to argue that, because Canon Pettersen was at the meeting on 16 July, he was somehow implicated in the agreement about the claimant’s activities. That was another attempt to introduce a factual issue. But it is wholly untenable, given the contents of Mrs Johnson’s note (set out verbatim at paragraph 26 above), which makes plain that Canon Pettersen left at 2:00pm and that it was only after he had left that an agreement was reached between the other four (named) people present. Again any suggestion otherwise was entirely groundless, unsupported by any evidence, and strayed beyond the bounds of what I consider it appropriate for counsel to argue.

The same difficulties tainted all the other points made on behalf of the claimant in relation to predetermination. In an email of 26 August 2014 Mr Regan said “regardless of the outcome of the investigation TH will no longer have any involvement or contact with any young ringers under our care at the Cathedral.” Again, that demonstrates that Mr Regan had no doubt as to the claimant’s activities. But again, there is no link to the decision-maker, Canon Pettersen. If there were any doubt about it, in a letter of 18 September 2014 to the claimant’s solicitor, it was expressly said that Mr Regan was not involved in the investigation (paragraph 37 above).

Accordingly, I consider the position to be straightforward. There is no evidence of any kind to suggest that Canon Pettersen had predetermined his decision. Neither (should it be relevant) is there any evidence that the second defendant predetermined his decision in July 2015. The evidence merely shows that Mark Regan formed a strongly negative view about the claimant by July 2014 which explains why he instigated the investigation. Since there is nothing to say that Mark Regan’s strong views had any effect on either of the decision-making processes, the predetermination allegation falls away.

Inadequate Disclosure

Eight documents are listed in the statement of facts and grounds as being documents which should have been, but were not, provided to the claimant during the investigation. Two of the documents ((iv) Mark Regan’s notes and (viii) LADO advice approximately made in May 2015) have not been demonstrated to exist, so no further ruling is required by the court. Document (vii) is the LADO report of 17 February 2015. For the same reasons as noted in paragraph 17 above, the report was prepared for Worcestershire County Council so was not a document in the possession, power and control of the defendants. It could not therefore be showed to the claimant. Moreover it was dated after the first decision was made so it could not have been provided to the claimant in advance in any event.

The remaining documents consist of Mark Regan’s emails which kick-started the investigation (paragraphs 29-31 above) and copies of four of the statements made by children B, D, I and U.

I am told that these four statements were not disclosed during the investigation because the first defendant was concerned that what was involved was complaints by children. Consent to provide copies of these statements was sought from the children’s parents. In these instances, the consent was not obtained. That is a complete answer to the criticism.

But more fundamentally, I do not accept that the claimant was entitled as of right to see these statements. In a police investigation, whilst the gist of statements may well be put to suspects when they are being questioned, it is very rare that actual copies of those statements are provided during interview. Furthermore, the fact that these statements were not provided to the claimant had no effect on the investigation or the claimant’s ability to respond to it, for the reasons noted below.

U’s statement is immaterial; nothing came from it. The points in the statements of B, D and I were summarised in the Concerns Document which the claimant saw. Moreover, the claimant was able to reply to those points, and at length, in the Response Document of 20 January 2015 (paragraphs 40-41 above). It would have been obvious to the claimant who the children were who were making these allegations. That can be seen in the fact that:

Accordingly, I am no doubt that the claimant was not entitled as of right to see these statements and had every opportunity to deal with the allegations that were based upon them. Even if I am wrong about that and the statements should have been provided, their non-disclosure had no effect whatsoever on the fairness of the investigation because the underlying allegations were fairly put (and were in some instances admitted).

That leaves document (i), which was Mark Regan’s email of 28 July 2014. That could be regarded as the email kick-starting the investigation. I am not persuaded that this was a disclosable document since what mattered was the material that the investigation turned up. But if that is wrong and the email should have been provided, then again I find it would have made no difference to the outcome of the investigation. There was nothing in that email which could or would have provided any solace to the claimant, or provided him with some sort of unexplored defence. On one view, that email was much more critical of the claimant than some aspects of the subsequent investigation. Accordingly, I find that the non-disclosure of that document is irrelevant to the outcome of the investigation.

Summary

The allegations of actual/apparent bias; predetermination; and inadequate disclosure are all rejected on the facts. Many of them were not properly arguable.

CONCLUSIONS

For the reasons set out in Section 5 above, neither the first nor the second defendant was a ‘core’ or ‘hybrid’ public authority or exercising any sort of public function. The claims against them were not amenable to judicial review. In those circumstances, the court does not have the jurisdiction to hear these claims. Permission to apply for judicial review of both decisions is therefore refused.

For the reasons set out in Section 6 above, the claim in respect of the first decision was significantly out of time and no extension is justified. Permission to apply for judicial review of the first decision is refused on that ground too. For the reasons set out in Section 7 above, I accept (with some misgivings) that the second decision was a decision which was capable of being challenged.

For the reasons set out in Section 8 above, I reject the Article 8 claim for each of the reasons noted there. It follows that the common law claim for judicial review, based on a narrower standard of review than a Convention claim, must also fail.

For the reasons set out in Section 9 above, I reject the allegations of bias, predetermination and inadequate disclosure.

For all those reasons, this claim is dismissed. I would urge the parties to agree all consequential matters. If that cannot be done, I will deal with them at a hearing to be arranged (probably when I am back in London) in June 2016.