By Martin Sewell
Followers of the prolonged saga of the Dean of Christ Church Oxford, Martyn Percy, will know that one of the prime movers of the failed processes to date has been Senior Censor, Professor Geraldine Johnson. She is an historian with particular interest in the history of art, and although her specialism appears to be in earlier periods, she must surely be familiar with Rene Magritte’s famous and subversive work “This is not a pipe” which appears above. It challenges us to question what we are looking at, and to think clearly about what we are discussing. A surreal work of art is a good starting point as we try and make sense of what is currently going on at the college where Lewis Carroll wrote Alice in Wonderland in which words mean what the speaker wants them to mean and where, today “safeguarding” and “vulnerability” become vehicles to an end.
I an a retired solicitor, and a former member Law Society Children’s Panel. https://www.lawsociety.org.uk/career-advice/individual-accreditations/children-law-accreditation. There are currently 2128 members, and the Government figures tell us that between June and September 2020 alone, they conducted cases for 7910 children. The Church does not choose to engage one of them to advise in this complex specialist area.
I may be forgiven for suggesting that such lawyers are a principal repository of experience and expertise when it comes to understanding safeguarding and risk assessment. Their daily work exposes them to what “dangerous” looks like,; they understand that not every person bringing a complaint is bona fide, that not every concern is serious per se, or justifies disproportionate reaction. Above all, they are governed by the principles of the Human Rights Act, specific rules and codes of conduct. All members are required to meet the selection criteria, to undergo annual training, and to be subject to strict rules for the management of cases. Importantly, they routinely argue cases for all participants within the process. On the same morning one might be representing an infant, a mother with learning difficulties, a “Gillick competent” young person, or an alleged abuser. That range ensures perspective.
The Church employs nobody from this panel, neither does Winckworth Sherwood, the solicitors who advise the Church, the Diocese of Oxford, Christ Church College, and Lambeth Palace. This is perhaps a good place to start an appraisal of the divergence between Dean Percy’s persecution and standard safeguarding practice.
I often received instructions in such cases at short notice. I might return from a morning in Court to receive a brief from my PA on a new case urgently starting that afternoon. Already she would have undertaken a conflict-of-interest check for me. It was utterly routine. Even with care, things slip through the net; mothers change their names; they cohabit with another client’s ex-husband. If a colleague draws attention to a potential conflict you walk away for a very practical reason for if an undeclared conflict arises at the hearing, the slipshod lawyer may face a wasted costs order of many thousands of pounds. None of this good practice is observed by the Church or the lawyers in the Percy case. Our core groups are routinely riddled with conflicts of interests. Nobody is sanctioned for this neglect of good practice.
At first hearing in the secular world, it was commonplace for lawyers to confer to determine what was a proportionate response to the allegations. We were routinely mindful of the right to family life. Sometimes interim restrictions were justified, but they were constructed by people who were serious about real risks, and not to accommodate grotesque imaginings. Not so in the Church. Dean Percy a man pf previous unblemished character has, inter alia, been put under a restriction not to meet with his 27 year-old son or to have coffee with a friend unless supervised. There is not a scintilla of evidence that either is a vulnerable person in need of safeguarding, or that such a restriction is proportionate or relevant to the allegations in the pending case. Such lack of analysis speaks of either malice or lack of intellectual curiosity on the part of those imposing such requirements: wherein lies the “risk” presented by the Dean who, let it be noted, should enjoy both a presumption of innocence and a full recognition of a blameless safeguarding practice to date? This cannot, of course, be said about certain dons who have a track record of false accusation. For clarity, I have never seen such disproportionate restrictions advanced, let alone upheld in a case of safeguarding within the Courts where such work is done properly.
Sometimes cases were resolved, but the birth of a further child triggered a fresh evaluation. In those cases it was routine to re-appoint the original Children’s Guardian and lawyer to look at the new matter, informed by what went before. It saves time and repetition. Contrast this with how Winckworth Sherwood and their clients approached the fresh Percy allegation. In the preceding case in which he had been comprehensively exonerated, Dean Percy had taken the point of principle that a retired police inspector who was a former work colleague of the Core Group Chair, should not be appointed to investigate his case (see conflict of interest above).
With the new matter arriving, normal good practice would have been to reappoint the same investigator – the one that the NST and Winckworth Sherwood had eagerly advanced as competent and of integrity – but they did not; their original choice had failed them, he had not produced the goods and had to go. This is what happens when the same people are acting as lawyers to the accusers and the tribunal, and so, a former Lambeth Palace safeguarding advisor ( also a former Police Officer) was instructed without consultation and ignoring legitimate objection.
Readers of this blog will have read about, and heard directly from, the latest NST approved Investigator, Kate Wood. I have not read, and do not refer to, any matter of substance from her report but ought to flag up the stages by which a safeguarding risk is assessed. First, one has to ascertain that the person against whom there is an alleged safeguarding infraction, is indeed a “vulnerable person” under the 2014 Care Act and the 2003 Clergy Discipline Measure. If they are not, the matter may still need investigating but not within the emotionally charged sphere of “safeguarding.” “Vulnerability” needs to be a contained concept for those needing truly special regard. If everyone is “vulnerable” (even for a moment) then functionally nobody is. The concept is supposed to give privileged protection to certain people for good reason. If everyone has a privilege it is not a privilege.
It is not enough to assert that that a person being notionally protected is “vulnerable”. There are supposed to be rules, definitions, and predictable criteria. In law, a word does not mean “what I choose it to mean” and it is legitimate to ask – and share- why a person falls into an asserted legal category You cannot just speculate that a notionally vulnerable person might be upset by certain behaviour. One needs chapter and verse; it is the sine qua non of the process. Further, an independent tribunal needs to make an early clear finding of fact that specific events occurred which only then trigger a proper safeguarding risk assessment by a suitably qualified person. The first question at that stage would be, “What is the risk that something similar might recur?” One then separately asks: ” Might something more serious arise?” One would also consider whether some intervention might manage or mitigate the risk. These are importantly distinct questions, and each will require careful evaluation with the appropriate reasoning clearly set out for the conclusion either way. I offer a neutral example.
If I close the door of a small room as I leave it, that may prove very alarming if I leave behind a person with claustrophobia. How one deals with my having done so would necessarily require ascertaining if I, or anyone else, had been told of the claustrophobic propensity. It could be a very spiteful act, or it could simply be an inadvertence. Whether I pose a generalised risk of every possibility that a fevered imagination might extrapolate from that event, might require a proper risk assessment, and here we enter the world of experts of which the Church of England has demonstrated scant knowledge experience or competence.
The legal profession has devised clear protocols for the use and management of experts and their evidence. See
http://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/pd_part_25a These rules underwrite sound process By following these, the specialist safeguarding lawyers deal with dozens of cases every day and here in a nutshell is how it is done. Whilst the judges retain overall responsibility, they delegate much to the children’s lawyer who has carriage of these arrangements. Thus, advocates arrive at the first hearing with the names and availability of their preferred experts. All the lawyers settle into the robing room and discussions begin. Usually a consensus emerges, the fact that the judge is readily on hand to resolve disputes ensures it rarely comes to that. The wording of questions can be finessed – usually by the children’s lawyer. Care is taken over the qualification of the expert. A paediatrician might know a great deal about a child’s injury, but if the timing of a broken bone is a crucial issue, they will defer to a consultant radiologist, so a specialist will be engaged. I was one of those lawyers managing the process in a routine way.
There is no such thing as “an expert in what is going to happen in the future”. If you ask an expert for a prediction of future risk you know that you will be told “The best predictor of the future is the past,” so a full history is prepared. Making a prediction is at best an educated guess by a highly specialised expert. There are some specialist social workers with academic research to their name who might be trusted with such a task, but generally a court would expect to hear from a consultant forensic psychologist or psychiatrist. The Church does not do this. They appoint a generic investigator they hope has some expertise, then leave it all to them. There is no discussion as in the Courts.
Drawing an instruction letter for a Court is always a joint exercise by the lawyers for two simple reasons. First, the purpose is to obtain a full and rounded opinion, with all relevant questions considered. Second, the expert is like the proverbial computer; “rubbish in – rubbish out”. If the instructions are weak, you will only end up with an application for a second opinion on which to challenge the first. As in all its cases, the Church, the Diocese, the College and the malcontents have not sought to prioritise a fair process by permitting meaningful respondent input to the choice of expert or instruction letter. The HRA “right to a fair trial” is not respected; you can speculate whether this is as a result of incompetence or something else, it matters not to the respondent.
In 2017 the Clergy Risk Assessment Rules were debated by General Synod. It is not a lengthy debate (!!) but well worth reading by anyone trying to understand how we came to be burdened with slapdash legislation The three Synod members with recent professional experience in these matters, I, and barristers Carl Fender and David Lamming, all urged Synod not to rush an approval of the scheme until the accompanying guidelines were produced for scrutiny.. We were not heeded.
The debate can be read here beginning at page 199. https://www.churchofengland.org/sites/default/files/2017-10/General%20Synod%20-%20February%202017%20w.%20index.pdf
Carl Fender pointed out the risk that “where the person does not have legal representation to input into the instruction letter it “can easily lead to bias in the report that is received, …. the letter of instruction can often be critical in terms of the answers that you get.” David Lamming wanted us to see the whole scheme before rushing it through. I addressed varying concerns including the right to a fair trial. Andrew Gray identified the absence of an appeal process and asked, “Why is it that an appeal is considered to be logistically problematic?” The Bishop of Leeds, Nick Baines, added “In my experience, I have yet to read a risk assessment that does not at best conclude that a person is a “low risk”. I can only say that makes all of us low risk, but at the end of it, someone, where there is no evidence to suggest they have done anything wrong at all, still has an assessment that says they are a low risk… I think that is fundamentally wrong and we need to be looking at this a little bit further to ensure justice is done to all parties, including the accused.”
Ignoring these interventions, the General Synod negligently set the scene for the shabby charade which we are being served up by the NST, Christ Church College, the Diocese and Winckworth Sherwood.
In summary, we have dreadfully conflicted lawyers instructing an “expert”, whose CV and sphere of expertise has not been shared for scrutiny. The resulting report, lacking any mechanism for quality control, is sent to those who have a well-evidenced track record of bringing false allegations against the Dean. Two of them will be “judges in their own cause”, deciding if their own case that- that the Dean is a risk- is justified. That would not have taken them long. These two members of the Cathedral Chapter have no qualification assistance to evaluate this assessment, but nevertheless felt able to assert that the Dean presents a “medium to high” safeguarding risk.
Now please pause and remind yourself of two things. The “expert” on whose judgement they appear to rely is a former police inspector. She, too, has none of the qualifications that we were expecting when we passed the risk assessment regulations. No court would commission a conclusive risk assessment from her. That is bad enough, but at least Ms Wood accepts her limitations. Although she apparently purports to offer an unqualified view on the Dean as a “medium to high risk” everyone involved appears to be themselves “at risk” of overlooking her important – and fair recommendation which I have been given and reproduce here. It is a simple procedural point.
“Conclusion 11:
From the Terms of Reference S.5.i Advise on whether a further safeguarding risk assessment should be undertaken as a result of this allegation or any other information that comes to light in the course of the investigation
This report is not an assessment of risk. In my opinion safeguarding policies should be followed in managing this allegation, and an Independent Risk Assessment should be undertaken as a result of this allegation.” [Emphasis added]
So, as the various and confusing procedures lumber on, the College and Cathedral surely now need to accept that even with all the breaches of ordinary good practice, all the ignoring of Human Rights principles, and failures to observe well established sound secular practice and natural justice, they have before them a document well short of what they hoped. The world knows they have behaved dreadfully, and now it knows that their current home-made risk assessment stands on nothing of substance. It is the product of flawed process, and inadequate expertise, highly seasoned with pre-existing prejudice and self-interest.
Their approach to justice is surreal; this is Christ Church performing “Malice in Wonderland.” Perhaps Professor Johnson might offer her colleagues a helpful lecture on surreal jurisprudence entitled “ This is not a Pipe, This is not a Risk Assessment. This is not a fair process”