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Note from the Mission Council's Section O Advisory Group

July 2007

 

Because of substantial changes to the Section O Process which are currently being made by the General Assembly, the Advisory Group is preparing revised sets of Guidelines. It is hoped that this task will be completed by the 2008 General Assembly. Meanwhile, although there is much useful and relevant information in these guidelines, readers should be aware that some paragraph references may not be correct.

 

GUIDELINES FOR MEMBERS OF MANDATED GROUPS

 

These Guidelines, including a flowchart have been prepared by mission council's Section O Advisory Committee to help you to understand the distinctive role which as a member of a Mandated Group you will play in the Section O Process.  They take into account all the changes made by General Assembly in July 2002.   Always make sure to have the latest version of Section O by your side when reading this.  Section O is printed in full in the Manual and can also be found on the Church’s Website [state reference].  Forms have been specially prepared to help you at the various stages in the Process.  Please obtain Forms 1 and 2 from your Synod office and be sure to use them because this will greatly simplify your own task and that of the Secretary of the Assembly Commission.  The remaining forms which you will require will be sent to you at the appropriate stage by the Secretary of the Assembly Commission.

 

The numbers in brackets in the text below take you to Appendix II which will give you the appropriate reference in Section O itself.

 

Section O Parts I and II will always take precedence over these Guidelines.

 

1.  THREE IMPORTANT PRINCIPLES

The Church judges its Ministers by the promises made at ordination to lead a holy life and to preserve its unity and peace and therefore it does not operate a “tariff” or offence-based disciplinary system. (1)

 

As members of the Mandated Group, you are simply required to take the disciplinary steps under the Section O Process in the particular case, and nothing more. (2)  You must not be drawn into giving or offering any sort of pastoral assistance, however well-intentioned, although throughout the Section O Process you must of course act with due sensitivity.  Conversely, those with pastoral responsibilities (whether to the Minister and his/her family or to the local congregation or in the wider councils of the Church) must play no part in the disciplinary process being brought against any Minister. (3) This separation of authority between the Mandated Group and the District Council (or other council of the Church in whose name you are acting) is crucial for the proper conduct of all disciplinary cases to ensure that the Minister receives a fair hearing.

 

Section O must only be seen as a last resort.  No-one should wish to exert discipline whilst pastoral care might achieve a satisfactory result.  However, there is a caveat.  In some cases decisive disciplinary action will clearly be needed in the interests of the Church as a whole.  To acquiesce in a “pastoral fudge” in such a situation would be a mistake which might have long-term consequences.  As members of a Mandated Group, you will always need to balance these two considerations carefully.

 

2.  DEFINITIONS

The Section O Process contains a list of definitions of words and phrases. (4)   You must study this list carefully, because every time a defined word or phrase is used it will carry that precise meaning.

 

3.  BEFORE ISSUE of REFERRAL NOTICE

3.1        When the Group is called upon in any particular case (5), each of you must act fairly and objectively.  You must not serve as a member of a Mandated Group if you have, or have had, any pastoral or personal involvement with the Minister or the local congregation or if you know of some other reason why your strict objectivity might be compromised.  If this situation should arise, you must immediately declare your interest and withdraw from the Mandated Group for that particular case. (6)

 

3.2      In the “Pre-Referral Notice” period, you work with the Moderator in carrying out an initial enquiry to see whether there is a prima facie case against the Minister. (7)

 

3.3.1     Consistent with a careful and thorough approach, you must move as quickly as possible in the interests of all concerned. You should obtain accurate statements before memories fade.  In some cases this initial enquiry might take less than 24 hours.  There is no time to be lost.  The task at this point is not to conduct a detailed investigation, but to review the situation and simply to decide whether or not the case should proceed.

 

Sometimes as a result of your initial enquiry you may realise that, although the problems are real enough, their root cause does not lie in the disciplinary realm but rather that specialised pastoral help is needed.   On other occasions allegations may have been made mischievously or maliciously.  In such situations, save in exceptional cases, it would not be appropriate for the Group to refer the case into the Commission Stage, which is the next part of the Process and is explained in Section 4 of these Guidelines.  Should you reach this conclusion, you must follow the procedure outlined in Paragraph 3.5.1 below.

 

3.3.3     This Paragraph contains an important caveat.   There may be times when you feel that an informal warning to the Minister or the imposition of a particular condition upon him/her would be sufficient.  BUT you have no authority to issue such a warning nor to impose any condition on him/her, as this would compromise your own distinctive ‘non-pastoral’ role within the Section O Process. (8)   Furthermore, it could defeat the object of dealing with the “initial enquiry” stage expeditiously. Therefore under no circumstances must you depart from your strict terms of reference as laid down for Mandated Groups in Section B of the Rules of Procedure, particularly Paragraphs B.7 and B.8.

 

3.4        Both before and after the issue of the Referral Notice, you will, as a group, need to conduct interviews with the Minister and others involved, and the following points should be noted:-

When requesting anyone to attend an interview, you should make it clear that the person concerned can decline to be interviewed or, if agreeing to attend, that s/he may terminate the interview at any time. 

 

At the same time you should also inform the Minister or other interviewee that s/he may have a friend present with him/her at any interview. (9)    If interviews have to take place with children, the presence of another party, e.g. parent, guardian, social worker, friend or counsellor, is essential.

 

When making the appointment, you must stress that the whole of the Disciplinary Process is protected by confidentiality.  This is essential in the interests of natural justice in order to ensure a fair Hearing for the Minister.  It should be pointed out when the appointment for the interview is made and repeated at the outset of each interview that discussion of the case with people not directly involved in the Disciplinary Process might prejudice the chance of a fair Hearing.

 

When interviewing the Minister and other witnesses, all three of you  (but never less than two) should normally be present.  This is to ensure that the record of the meeting is accurate, and to afford protection against any criticism that one member of the Group acting alone might have conducted the interview improperly or misunderstood or misrepresented the evidence given by the person being interviewed.

 

You must be courteous and fair and not intimidatory, your aim being to create a relaxed and informal atmosphere so that the person being interviewed does not feel under pressure.

When you interview a person who provides information which in your view supports the case against the Minister, you should ask whether s/he would be willing to attend the Hearing if required to do so.   Unlike the courts of law, there is no power under Section O to subpoena witnesses to attend to give evidence.   Therefore you cannot fully assess the strength of the case unless you know who will and who will not be prepared to attend the Hearing, and it is as well to find this out as early as possible (although it should be added that witnesses can of course change their minds later).

 

3.5        Bearing in mind what has been said at Paragraph 3.3.1, you must aim to bring your initial enquiry to a conclusion as quickly as possible in one of two ways:- (10)

 

If you believe that there are no grounds or insufficient grounds for pursuing the matter further, you must immediately serve on the Synod Moderator (or other person who called you in) a notice to this effect (called a ‘Notice of Non-Continuance’). (11)  Once you have served this notice, you are discharged from any further involvement in the matter.   It is then the responsibility of the Synod Moderator to tell the Minister that the case is  not proceeding . (12)

 

If however you decide that the case should proceed you must follow the Referral Notice and Suspension procedure explained in Section 4 of these Guidelines.  (13)

 

4  The REFERRAL NOTICE and SUSPENSION of MINISTER

If as a Group you believe that there is a prima facie case against the Minister, you should issue a Referral Notice using the form provided. (14)   The Process then moves into the Commission Stage.

 

When you issue the Referral Notice, you must at the same time suspend the Minister (15) from active involvement within his/her pastorate or other sphere of work within the Church.  There is no discretion as to whether or not to suspend.  Nor do you have authority to suspend a Minister without issuing a Referral Notice, although in urgent cases you may notify the Minister orally of his/her suspension so long as you immediately follow this up by issuing the Referral Notice and the written Notice of Suspension.  Suspension is regarded as a necessary part of the Process and does not carry any pejorative implications. (16)

 

Occasionally you may find that the Moderator has already suspended the Minister under emergency powers. (17)   In such a case, at the same time as you issue the Referral Notice you must also give the Minister written notice that his/her suspension will continue during the Commission Stage (18)

 

4.2.3     When issuing the Referral Notice and suspending the Minister, you must also inform the Synod Moderator and the Secretary of the District Council so that the Moderator and the District Council can take whatever pastoral steps they consider appropriate. (19)

 

4.3        The Referral Notice must contain as full a statement as possible of the reasons why you believe that a breach of Ministerial Discipline has or may have occurred.   You should also include in this statement a summary of the supporting information which has led you to issue the Referral Notice (20), although you do not have to state in the Referral Notice the names of the complainant and any other persons who may have supplied the information.  This summary will tell the Minister at an early stage what allegations are being made against him/her and it might also avoid the need for an application at a later stage to admit information not contained in the Referral Notice, which in turn might delay bringing the matter to a Hearing.  

 

4.4        For the procedure to run smoothly and promptly, it is essential for the Secretary of the Assembly Commission to have one, and only one, contact point with the Mandated Group.  For this reason you are asked to state in the Referral Notice the name and address of the member of the Mandated Group who will accept service of documents on behalf of the Group.  If you fail to include this information, the member of the Mandated Group who signs the Referral Notice is the one to accept service of documents.  The Secretary of the Assembly Commission will liaise with that person.   (21) 

  

4.5        In most cases the Mandated Group will be called in to represent the District Council.  However the Rules also provide for the calling in of a Mandated Group on behalf of either Synod or General Assembly, and if this should apply to your Group please note the few minor changes in the procedures.  (22)

 

THE COMMISSION STAGE

A.  BEFORE THE HEARING

5.1        Once the Referral Notice has been issued, every case will ultimately be brought to an Assembly Commission for decision.  You will have the task of investigating the matter (23) and then of presenting the case against the Minister at the Hearing itself. (24)

 

5.2        The Secretary of the Assembly Commission is appointed by the General Assembly to deal with the procedural and administrative aspects of Section O cases. S/he is not a member of the Assembly Commission, and his/her task is to see that the correct formalities are complied with.  S/he is the Mandated Group’s link with the Assembly Commission in the steps that have to be taken prior to the Hearing.

 

5.3        At the outset of the Commission Stage, an Assembly Commission consisting of five persons will be appointed from the Commission Panel to hear the case. (25).  You and the Minister both have the right to object to the appointment of any of the proposed appointees to the Assembly Commission or to its Secretary on the ground of personal or pastoral involvement. (26)   (See also Paragraph 3.1 of these Guidelines).

 

5.4        Natural justice demands that the Minister should be made fully aware of the accusations laid against him/her; that s/he should have the opportunity to answer those accusations and that s/he should receive a fair hearing.  All these matters have been taken into account in deciding the timescale for the steps leading up to the Hearing.  The result is that at least two months may elapse between the date of the Referral Notice and the date of the Hearing.  This allows time for the proper appointment of the Assembly Commission, for the pre-hearing procedures to be dealt with and for both parties to prepare for the Hearing. (27)

 

5.5        In conducting your investigation you must always act in a fair-minded way without any prejudice for or against either the Minister or those making the allegations, and your enquiries during the Commission Stage will need to be detailed and painstaking.  In your investigation of the facts and your presentation of the case at the Hearing you must not be aggressive towards the Minister or his/her witnesses.  Nor should you only carry out a desultory or superficial investigation and ignore important facts or shy away from sensitive areas because, for example, you might feel sorry for the Minister or his/her family and/or be apprehensive about the upheaval and resentment which detailed personal questioning might cause.  Objectivity, fairness and thoroughness must be the hallmarks of your work.

 

You should concentrate on the matters referred to in the allegations contained in the Statement of Reasons set out in the Referral Notice.  It is not part of your brief to investigate other aspects of the Minister's life.  However, if in the course of the questioning other facts emerge which you believe might have a bearing on the case (including any such occurring during the Commission Stage), you may approach the Secretary of the Assembly Commission to ask the Commission to exercise its discretion to allow consideration of these matters as part of the case. (28) 

 

5.6.2     Sometimes it may seem to you both before and during the Commission Stage, and even at the Hearing itself, that the Minister is acting in an unco-operative or unacceptable manner, either in relation to the Section O procedures or more generally.  If so, your spokesperson is entitled when presenting your case to ask the Assembly Commission to take such conduct into account when considering its decision.  The Minister has reciprocal rights against a Mandated Group which s/he believes to be similarly infringing the Rules of Procedure. (29)

 

5.7        You need to be aware of the issue of defamation.  Some of the statements made about the Minister or other persons involved in the disciplinary matter could in themselves be defamatory and, if untrue, could lay the person making them open to an action for libel or slander.  The statements are protected if made without malice and for the sole purpose of the Section O Process.

 

5.8        Criminal Cases.  Cases will sometimes come into the Section O Process where a Minister is subject to criminal investigation, and in some cases criminal charges may have already been brought against him/her.  In these situations there could be serious consequences if you do not follow the correct procedures which are explained in detail in Appendix I of these Guidelines.  Please study both Appendix I and Paragraph E.7 of the Rules of Procedure with especial care.

 

5.9        Having carried out a detailed investigation, you should prepare for the Hearing by examining all the information which has been gathered. You will need to consider the reliability of each item of information and how pertinent it is to the case against the Minister.   There are many reasons why evidence might not be reliable.  A few examples might be - a person’s emotional state, some degree of personal animosity, inconsistencies in information supplied, a witness quite simply saying that, whilst believing that such-and-such happened, s/he cannot be absolutely sure.

 

5.10      The burden of proving the case falls on the Mandated Group (30) and the standard of proof required is the civil standard of “balance of probability”, not the criminal standard of “beyond reasonable doubt”. (31)

Having carefully examined all the information and discarded any which you consider to be unreliable or irrelevant, you should then consider the inferences to be drawn from the reliable, relevant evidence.  Do they, in your view, lead to a conclusion that the Minister has broken the promises made at Ordination to lead a holy life and to preserve the unity

and peace of the Church? (1)   This is the first principle stated in Section 1 of these Guidelines.  If you do reach that conclusion, you have a further question to consider.  Do you believe that the breach of discipline is sufficiently serious to justify deletion from the Roll (32) or would a written warning be sufficient? (33)   The final decision rests with the Assembly Commission, but you should ensure that your spokesperson fully expresses your view on the seriousness of any perceived breach of discipline at the Hearing.

 

5.12.1   After you have carefully assessed the information and weighed up both its reliability and its pertinence to the central issue of whether or not the Minister has committed a breach of discipline, you will then need to prepare a list of witnesses and make sure that those persons will be able to attend the Hearing in person.

 

5.12.2   Your correspondent (see Paragraph 4.4 above) must in advance of the Hearing lodge with the Secretary of the Assembly Commission copies of the documents, statements and information to which you intend to refer at the Hearing (34) and a list of the witnesses you intend to call to give evidence (35)

 

5.13.1   An important step which you have to take before the Hearing is to appoint a spokesperson to present the case against the Minister to the Assembly Commission at  the Hearing.  You will most likely choose one member of the Group to perform this task but you may instead appoint a separate spokesperson if you so wish.  Prior to the Hearing date you must inform the Secretary of the Assembly

Commission of the name and status of your spokesperson.

 

(36)   You must not appoint anyone to act as spokesperson who could not serve as a member of your Mandated Group for the reasons explained in Paragraph 3.1 of these Guidelines. (37)  

 

5.13.2   When all the investigation work has been completed, the spokesperson should prepare for the Hearing itself by spending some time reading all the statements and papers, “mulling over” the salient facts and considering the sort of questions which s/he should put to the witnesses in evidence at the Hearing.

 

5.14      Sometimes there may seem at first sight to be a strong case, but when you investigate further, it may become apparent to you that the evidence is unreliable or not substantial enough to support a case that the Minister has committed a breach of discipline.  In this event, you may give written notice to the Secretary of the Assembly Commission in advance of the Hearing that as a result of your investigation you do not intend to press the case for the deletion of the Minister’s name from the Roll of Ministers.  The Assembly Commission will then in consultation together and entirely at its own discretion decides whether the formal Hearing should nonetheless take place or whether it can be dispensed with.  In the latter case the Assembly Commission’s ruling would be that no breach of discipline had occurred and that the Minister’s name be retained on the Roll. (38)

 

5.15           The Assembly Commission must disregard any information based on previous allegations against the Minister  which may have been considered by an earlier Assembly Commission, unless at that previous Hearing a written warning was issued which related to those issues. (39)

 

THE COMMISSION STAGE

 B. THE HEARING ITSELF

6.1        The Convener of the Assembly Commission will formally open the Hearing by introducing himself/herself and the other members of the Assembly Commission and explaining the roles of the Secretary and the legal adviser to the Commission (if present). S/he will then explain the purpose of the Hearing, the procedure to be followed during the Hearing and what will happen after the Hearing itself has been concluded and the parties have withdrawn.  S/he will then invite the spokesperson for the Mandated Group to make the opening statement and the Hearing will continue as set out in the Rules of Procedure. (40)

 

6.2        Just as you, as members of the Mandated Group, will have been working together during the investigation, so you should if possible all be present at the Hearing since you may need to consult and to instruct your spokesperson as matters unfold during the day itself.  If this is not possible, it is strongly recommended that at least two of you should be there. At the other end of the spectrum, a spokesperson who is not a member of the Mandated Group cannot conduct the case adequately without at least one member of the Group being present for consultation.

 

The remarks here in Paragraphs 6.3.1 and 6.3.2 are specifically directed to the spokesperson.  You must not “lead” the Mandated Group’s witnesses.  You must not ask questions which set out the evidence and merely require the witness to confirm, i.e. simply put words into his/her mouth.  On the other hand, you may ask leading questions in cross examination of the Minister or his/her witnesses because they have the opportunity to deny any allegations which are made, but you must not harass any witness, adopt an aggressive attitude or ask questions unrelated to the case.  Everything revolves round the issues of objectivity, fairness and relevance.

The same applies to the closing speech where you should concentrate on the evidence presented earlier and the inferences to be drawn from that evidence in the light of the criteria for judging cases against Ministers (see Section 1 of these Guidelines). 

 

6.4        Immediately following the closing speeches, the Convener of the Assembly Commission will ask the parties to leave the room.  The Secretary of the Assembly Commission and the legal adviser (if present) will also leave and the members of the Assembly Commission will then deliberate in private in order to reach their decision.  It is understandable that the parties will wish to know the decision as quickly as possible but it is even more important that the members of the Assembly Commission should have as much time as they need to weigh the evidence fully and meticulously and reach their decision.  Too much is at stake for them to be hurried !  With this in mind, the Convener of the Assembly Commission will at this point announce to the parties that the decision will not be given that same day but that written notification will be issued to both parties within 10 days of the decision being reached. (41)

 

7.  APPEALS PROCEDURE

7.1        Either party is entitled to lodge an Appeal against
the decision of the Assembly Commission. (42)  Any Notice
of Appeal must be served on the Secretary of the Assembly
Commission no later than 21 days from the date of service
of the decision of the Assembly Commission on the party
wishing to appeal.  (43)

 

7.2        Except where obviously inappropriate, the Rules set out in Section E of Part II relating to cases going before the Assembly Commission will also apply to the Appeals Procedure. (44)

 

7.3        However, there are two important differences between the procedures.   Although the Appeals Commission will have all the papers available to the Assembly Commission and the Record of its Hearing, it must not rehear any of the evidence, nor can further evidence be introduced, except where the Appeals Commission considers that it may need to order a re-hearing of the case by a new Assembly Commission. (45)

 

 CONFIDENTIALITY AND PUBLICITY

The confidentiality of the Section O Process is regarded as of prime importance and consequently members of the public do not have access to formal Hearings (46) nor should you as members of the Mandated Group comment publicly or privately about any aspect of the case, either to the press or to friends or acquaintances inside or outside the Church.  This applies equally both during the case and after it has been concluded.

 

Throughout the whole of Section O, the emphasis is on the need to ensure that the Minister receives a fair Hearing and that only the evidence which is properly presented before the Assembly Commission has any bearing on the final decision.  To indulge in unguarded comments outside the confines of Section O can easily prejudice the conduct of the case and might even affect the result, thus doing a grave disservice to the Church or the Minister – or both!

 

Strict confidentiality is equally important for another reason.  The purpose of having a Disciplinary Process is not to punish the Minister but to protect the Church and to preserve its highest standards of care.  Those who operate Section O have no desire to see the reputation of the Minister – or anyone else for that matter - gratuitously undermined.  We emphasise this to show that your sole task in presenting your evidence is to enable the Assembly Commission to reach a well informed decision and that once that has been done the purpose of that evidence has been served.

 

In a case where the Assembly Commission finds that there has been no breach of discipline or where it decides that the breach does not merit deletion from the Roll but simply a written warning, any ill-advised leaking of information is bound to damage the reputation of the Minister and to make his/her future ministry more difficult to exercise. 

 

8.5        The Press Officer at Church House is responsible for dealing with the media, both national and local on all matters affecting the Church, including Section O.  This is a task which demands a high degree of skill and experience.  Therefore, please do not be prevailed upon to offer any comments about any case in which you are or have been involved.  If the media should approach you, simply refer them to the Press Officer.

 

9.  GENERAL POINTS

9.1        Although these Guidelines have been specially prepared to assist you, they provide general guidance only.  In dealing with actual cases, you may require some specific help.  So long as this relates to purely procedural points, you may refer to the Secretary of the Assembly Commission.   In turn s/he may consult the Clerk of the General Assembly and/or the Church’s legal adviser.  However where the help required goes beyond this and relates to the conduct of the particular case, neither the Secretary nor any member of the Assembly Commission nor the legal advisers to the Commission can advise you because all these people have objective roles to play in the Section O Process and it would be unfair to the Minister if they were to assist you in any way in the conduct of your investigation or in the handling of a case itself.

 

9.2        Once a case has been completed either when the decision of the Assembly Commission has been given and the time for Appeal has expired or, if an Appeal is lodged, when the decision of the Appeals Commission has been given, your file can be closed.  Arrangements have been made for the confidential custody of closed files, and the Secretary of the Assembly Commission will be able to advise you as to the procedures.

 

APPENDIX I - See Paragraph 5.8

Cases where there is a criminal investigation of the Minister - Rule E.7

1                      Section O proceedings may sometimes be brought or contemplated against a Minister who is subject to criminal investigation.  In some cases s/he may already be facing criminal charges.  In cases involving any of the matters set out in Rule E.7 (47), it would be wrong for the Assembly Commission to conduct its own hearing and attempt to reach a decision based on evidence still sub judice in a criminal court.  In such a situation you must notify the Secretary of the Assembly Commission who will then adjourn the Church’s disciplinary proceedings and await the outcome of the criminal process. (48)

 

2                      The Secretary of the Assembly Commission
 will notify the parties of the compulsory adjournment (49),
and during the same period you must also suspend your
investigation of any matter which might bear relation to
the criminal proceedings, subject only to observing the
criminal trial as a necessary step in your investigation
of the case. (50) The purpose of the adjournment is to
allow the criminal prosecution (if it proceeds) to take
its course.

 

3                      In criminal cases, the Courts have the power
 to subpoena witnesses to attend Court in person to give
evidence.  Furthermore, in cases involving physical abuse
or violence, the police will most likely have carried out a
detailed investigation, possibly involving medical
examinations of witnesses.  It must also be remembered
that the standard of proof in criminal cases is “beyond
reasonable doubt” rather than  “the balance of probabilities”which is the civil standard adopted by the Church for the Section O Process. (51)  Therefore if a guilty verdict is reached against a Minister in a criminal case, the conduct which constituted the offence resulting in that guilty verdict is, for the purposes of the Section O Process, taken as having been committed.  This applies even if the Minister asserts before the Assembly Commission his/her innocence of the criminal charge.  As a result you do not have to prove to the Assembly Commission the facts which led to the criminal verdict. (52)