TYLER v. THE UNITED KINGDOM



                  AS TO THE ADMISSIBILITY OF

                    Application No. 21283/93

                    by Thomas TYLER

                    against United Kingdom

     The European Commission of Human Rights sitting in private

on 5 April 1994, the following members being present:

     MM.  C.A. NØRGAARD, President

          S. TRECHSEL

          A. WEITZEL

          F. ERMACORA

          E. BUSUTTIL

          A.S. GÖZÜBÜYÜK

          J.-C. SOYER

          H.G. SCHERMERS

          H. DANELIUS

     Mrs. G.H. THUNE

     MM.  F. MARTINEZ

     Mrs. J. LIDDY

     MM.  L. LOUCAIDES

          J.-C. GEUS

          M.P. PELLONPÄÄ

          M.A. NOWICKI

          I. CABRAL BARRETO

          B. CONFORTI

          N. BRATZA

          I. BÉKÉS

          J. MUCHA

          E. KONSTANTINOV

          D. SVÁBY

     Mr.  H.C. KRÜGER, Secretary to the Commission

     Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on

18 November 1992 by Thomas TYLER against the United Kingdom and

registered on 27 January 1993 under file No. 21283/93;

     Having regard to the report provided for in Rule 47 of the

Rules of Procedure of the Commission;

     Having regard to :

-    report provided for in Rule 47 of the Rules of Procedure of

the  Commission;

-    the observations submitted by the respondent Government on

     3 August 1993 and the observations in reply submitted by

     the applicant on 18 August and 5 September 1993;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is a citizen of the United Kingdom, born in

1939 and resident in Ipswich.

     The facts of the present case may be summarised as follows:

A.   The particular circumstances of the case

     The applicant is a priest in the Church of England.  In 1977

he was appointed incumbent of a parish in the Diocese of

Chichester, Sussex.  On 27 April 1989 he was informed that one

of his parishioners had alleged that he was committing adultery

with another parishioner.  The matter was reported, apparently

in May 1989, to the local archdeacon and on 5 June 1989, after

a meeting with the arechdeacon, found to be groundless.  A

further allegation was made concerning a second woman, but it was

also not pursued.  In February 1990, both women made complaints

against the applicant to his bishop.  On 18 March 1990 the

applicant was suspended from his duties.  On 1 May 1990 he had

a private interview with his bishop and disciplinary proceedings

against him were subsequently initiated.  An examiner heard the

evidence in September 1990 and decided that there was a case

against the applicant to be answered before the Consistory Court.

     On 20 November 1990 the Consistory Court found the applicant

guilty of five charges of adultery and deprived him of his living

by way of sentence.  His bishop decided, however, not to deprive

him of holy orders.

     The applicant appealed against the Consistory Court's

decision.  The appeal was heard by the Arches Court of Canterbury

on 4 April 1991 which ordered a retrial.  Pre-trial reviews took

place in June and July 1991.  Another Consistory Court tried the

applicant on 10 September 1991.  On 18 September 1991 he was

found guilty on two charges of adultery involving one of the

women complainants and he was deprived of his living by way of

sentence.  The Arches Court dismissed the applicant's appeal on

22 May 1992.

     The proceedings were the subject of press interest, the main

complainant having sold her story to a national newspaper for

£11,500 in December 1990, the story to be published after the

trial of the applicant if he were found guilty.

B.   The relevant domestic law and practice

     The ecclesiastical law of England is as much the law of the

land as any other part of the law.  It is grounded in both common

and statute law and is altered from time to time by statute or

by measure, a form of legislation initiated by the Church of

England but requiring Parliamentary approval.  The Ecclesiastical

Jurisdiction Measure 1963 established the present system of

ecclesiastical courts in the Church of England.  Part of the

jurisdiction of these courts involves the enforcement of clerical

discipline.  Each diocese has a Consistory Court, with the

possibility of appeal to either the Arches Court of Canterbury

or the Chancery Court of York.  The Privy Council has

jurisdiction on appeal in doctrinal matters.

     Each Consistory Court is presided over by a chancellor, a

legally qualified judge appointed by the bishop on a permanent

post.  On taking office he swears an oath of allegiance to the

Queen, and an oath that he will deal "uprightly and justly ...

without respect of favour or award".  He sits with four assessors

at the trial of a priest for any disciplinary offence.  The

assessors are chosen by ballot from panels of priests and laymen

in equal proportions.  Appointments to the assessors' panels are

made by the diocesan synod and are for a period of six years.

Assessors' functions are the same as those of a jury in the Crown

Court and their decision must be unanimous.  Five judges sit on

the Arches Court of Canterbury or the Chancery Court of York, the

president being the same person for both Courts.  He is called

the Dean of the Arches and Auditor and is a person who holds or

has held high judicial office or is a lawyer of at least 10

years' standing, appointed on a permanent post by the chairman

of the House of Laity of the General Synod, after consultation

with the Lord Chancellor.  The other four are two people in holy

orders and two laymen.  Each judge in the Arches Court takes the

same oaths as the chancellor in the Consistory Courts.

     A priest may be disciplined under Section 14 (1) of the

Ecclesiastical Jurisdiction Measure 1963 for conduct unbecoming

the office and work of a clerk in holy orders by way of a

criminal suit before a Consistory Court.  The proceedings may be

initiated by a complaint to the clergyman's bishop, who decides

whether to proceed with the matter after a private interview with

the accused and the complainant.  If the matter is to be pursued,

it is referred to an examiner, selected by ballot from a panel

appointed by the diocesan synod, for an inquiry to be made.  The

parties may be assisted by friends, advisers or lawyers.

Evidence is given by affidavit or orally on oath.  If the

examiner decides that there is a case to answer it is referred

to a promoter (the prosecutor) of the complaint, on nomination

by the bishop, who in turn refers the matter to the registrar of

the Consistory Court.  This is called lodging the articles.  The

accused may submit a written reply to the Court, admitting or

denying the offence.  The trial takes place within 28 days after

the lodging of the articles.

     The rules as to the admissibility of evidence and as to the

competency or compellability of witnesses are the same as those

at a criminal trial in the Crown Court.  Any findings of guilt

and the censure (the sentence) must be set out in a written

judgment and pronounced in open court.

     An appeal on law and/or fact from the Consistory Court to

the Arches Court of Canterbury or the Chancery Court of York must

be made within 28 days of the Consistory Court's decision.  The

two appeal courts, deciding by majority opinion, have power to

review the evidence, confirm, reverse or vary any decision of the

Consistory Court, or remit the case for further proceedings

before the latter court.

     The censures which may be pronounced against an accused

found guilty of an offence under the Ecclesiastical Jurisdiction

Measure 1963 are deprivation, inhibition, suspension, monition

and rebuke.  A censure of deprivation may be followed by the

extra-judicial act of deposition from holy orders.  A censure of

deprivation is the removal

of the person from the office he holds and his disqualification

from holding such office in the future.

COMPLAINTS

     The applicant complains that he is the victim of a violation

of Article 6 paras. 1 and 2 of the Convention.

     He alleges that the press coverage of his case prevented a

fair hearing and that the proceedings did not take place within

a reasonable time, delays largely being due to the prosecution.

     The applicant claims that he was not heard by an independent

and impartial tribunal.  He states, inter alia, that there was

no substantial or corroborative evidence against him, that the

proceedings and structure of the ecclesiastical courts in his

case defy any notion of independence or impartiality, given the

involvement of the bishop and the Diocese of Chichester to whom

the original complaints had been made, alleged collusion between

the prosecution and the diocesan officers, the presence of

clergymen on the court panels, and the all pervading influence

of the Church of England, which was the only source of legal aid,

tardily awarded.  He contends that the Church of England has been

prosecution, judge and jury in the proceedings against him, in

breach of Article 6 para. 1 of the Convention.

     As regards the second paragraph of Article 6, he refers,

inter alia, to an alleged lack of evidence against him, the

unimpeachable testimony of defence witnesses, the adverse

publicity surrounding the proceedings and the absence of any

convictions of any kind throughout his life.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 18 November 1992 and

registered on 27 January 1993.

     The Commission invited the parties to submit written

observations on admissibility and merits on 3 May 1993.  The

Government's observations were submitted on 3 August 1993.  The

applicant replied on 18 August 1993, and submitted further

comments on 5 September 1993.

THE LAW

1.   The applicant alleges that the courts which dealt with his

case were not independent and impartial within the meaning of

Article 6

(Art. 6) of the Convention, and that this provision has thereby

been breached.  Article 6 (Art. 6) of the Convention provides,

so far as relevant, as follows:

     "1.  In the determination of his civil rights and

     obligations or of any criminal charge against him, everyone

     is entitled to a fair and public hearing within a

     reasonable time by an independent and impartial tribunal

     established by law. ...

     2.   Everyone charged with a criminal offence shall be

     presumed innocent until proved guilty according to law."

     The Government submit that in respect of this complaint the

applicant has not exhausted domestic remedies in that he did not

put his complaint concerning the Consistory Court to the Court

of Arches.  The applicant points out that he regards both the

Consistory Court and the Court of Arches as lacking in

independence and impartiality, and that it is impossible to

appeal to a court that has just rejected an appeal on the grounds

that that same court is lacking in impartiality.

     The Commission notes that the applicant's complaint as to

the independence and impartiality of the tribunals which dealt

with his case is that their composition was in violation of the

Convention.  He does not suggest that they were in contravention

of domestic law.  Accordingly, given an applicant's inability to

invoke the Convention directly in the courts in the United

Kingdom, and in the absence of any authority cited by the

Government to show that the applicant could otherwise have

challenged the domestically lawful composition of the Consistory

Court before the Court of Arches, the Commission finds that the

applicant was not required to allege structural lack of

impartiality or independence to the latter tribunal.  The

Commission therefore rejects the Government's submissions as to

exhaustion of domestic remedies.

     The Commission must next determine whether the proceedings

involving the applicant determined a "criminal charge" against

the applicant, whether they determined his "civil rights and

obligations", or whether they fell outside either of these

categories.

     As to the question of whether the proceedings determined a

"criminal charge", the Government submit that the criteria first

set out in the Engel case (Eur. Court H.R., Engel judgment of 23

November 1976, Series A no. 22) indicate that the proceedings

were not "criminal".  The applicant points out that the

ecclesiastical courts are modelled on criminal courts, that the

burden of proof is that used in criminal courts, that the church

employed a barrister to "prosecute" the case who specialises in

criminal law, and that the sentence has caused him considerable

financial hardship.

     The Commission notes that ecclesiastical law in the United

Kingdom describes proceedings for conduct unbecoming a priest as

a "criminal suit", and further notes that ecclesiastical law is

a fully integrated part of ordinary domestic law.  However, the

definition of an offence in the internal legal system is only one

criterion in determining whether proceedings determine criminal

charges, and is not decisive (cf. Eur. Court H.R., Demicoli

judgment of 27 August 1991, Series A no. 210, p. 15, para. 31).

     Of greater importance in assessing the applicability of the

term "criminal charge" in a particular case are the criteria of

the "very nature of the offence" and the "degree of severity of

the penalty that the person concerned risks incurring" (above-

mentioned Demicoli judgment, pp. 16, 17, paras. 33, 34).  The

Commission recalls that "[d]isciplinary sanctions are generally

designed to ensure that members of particular groups comply with

the specific rules governing their conduct" (Eur. Court H.R.,

Weber judgment of 22 May 1990, Series A no 177, p. 18, para. 33).

The Commission considers that the charge of "conduct unbecoming

a priest" is not inherently criminal in nature.  The specific

charge in the present case, adultery, is one of behaviour which

commonly is not criminal in member states of the Council of

Europe.  It is rather within the category of disciplinary matters

generally designed to ensure that the members of particular

groups, in the present case clergy in the Church of England,

comply with the specific rules governing their conduct.  Finally

in this respect, the Commission finds that although the applicant

undoubtedly suffered financial loss as a result of the "sentence"

in his case, that loss was not itself the penalty.  Rather, the

loss was the indirect result of the penalty of "deprivation".

     The Commission finds that the proceedings in which the

applicant was involved did not determine a "criminal charge"

within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention.

     As to the question whether the proceedings against the

applicant determined  "civil rights and obligations", the

Government submit that the applicant's functions as a priest are

more in the nature of public service than they are private

professional practice.  Pointing to Commission case-law to the

effect that Article 6 para. 1 (Art. 6-1) of the Convention does

not apply to disputes concerning the dismissal of civil servants

(eg, No. 10878/84, Dec. 4.12.84, D.R. 41, p. 247), they consider

that, although the applicant was not a State employee, he did not

exercise a private right to continue his work as a priest and

that the ecclesiastical proceedings did not therefore determine

his "civil rights".  The applicant considers that the requirement

to leave his house, and a request that he leave his parish,

constituted a determination of his civil rights.  He also submits

that a person ordained as a priest has a civil right to exercise

his priestly ministry within the Church.

     The Commission notes that the Church of England is

structurally a separate entity from the State, although there is

some overlapping of functions because of the Church's

traditionally close links with the State.  Thus bishops

participate in the legislative process and the monarch is also

temporal head of the Church.  The Commission next notes that the

effect of the applicant's deprivation was to prevent him from

continuing to act as a priest within the Church of England.

Whilst he was not deprived of holy orders, as a direct

consequence of the deprivation he lost his income, his pension

rights, and the free accommodation which he had enjoyed until

then.  The Commission is not, however, required to decide whether

the proceedings in the present case determined the applicant's

civil rights within the meaning of Article 6 para. 1 (Art. 6-1)

of the Convention, as, even if they did, the application is in

any event manifestly ill-founded for the following reasons.

     The Commission must ascertain whether the proceedings were

held before an "independent and impartial tribunal" within the

meaning of Article 6 (Art. 6) of the Convention.

     Before the Consistory Court the proceedings were determined

by the chancellor of the diocese sitting with four assessors.

The Government submit that the diocesan chancellor is always a

qualified and experienced lawyer, that his appointment, by the

bishop, is permanent, and that he may only be removed in

exceptional circumstances.  The applicant underlines that the

chancellor is appointed by the bishop, and considers that the

Consistory Court is not independent of the Church of England, as

it should be.  He also points

out that the Government fail to consider the position of the

assessors, who are drawn from a very small group of people all

of whom are drawn

from the diocesan Synod, and so cannot be expected to be

impartial in the first place.

     The Commission finds it appropriate for a tribunal dealing

with what are essentially disciplinary matters to have some

participation from the body concerned.  In the present case the

diocesan chancellor was appointed by the bishop, but he had

permanent tenure and was required to be a lawyer of at least 7

years' standing.  In the absence of specific allegations of bias,

mere appointment by the equivalent of an executive organ cannot

be seen to impeach the independence of the chancellor (cf., for

example, Eur. Court H.R., Sramek judgment of 22 October 1984,

Series A no. 84, p. 18, para. 38).  The Commission notes that the

chancellor is required to take an oath of independence which acts

as a guarantee of a certain degree of independence from the body

nominating him (cf. Eur. Court H.R., Ettl judgment of 23 April

1987, Series A no. 117, p. 18, para. 38).  The applicant has not

alleged that any of the judges in the case actually took

instructions or was actually biased.

     Whilst it is true that the chancellor sat with four

assessors, and that two of the assessors were clergy and two were

laymen, the Commission finds that there are no specific reasons

in the present case to assume that the assessors, whose role is

similar to that of a jury, were in any way partial or not

independent.  The position is different from that where certain

members of the jury have declared political affiliations in cases

concerning subjective matters of defamation and where there are

connections between the jurors and the other party (cf. Eur.

Court H.R., Holm judgment of 25 November 1993, Series A no. 279-

A).  In particular, the fact that members of the disciplining

body participate in the exercise of disciplinary jurisdiction

over other members cannot suffice to bear out a charge of bias,

even where Article 6 (Art. 6) is applicable (cf, Eur. Court

H.R,., Le Compte, Van Leuven and De Meyere judgment of 23 June

1981, Series A no. 43, p. 25, para. 58).  As the Court there

pointed out, personal impartiality is to be presumed until there

is proof to the contrary.

     The Commission finds that the Consistory Court complied with

the requirements of Article 6 (Art. 6) of the Convention as to

independence and impartiality.

     The Commission next turns to the Court of Arches.  The Dean

of the Arches is a person who holds or has held high judicial

office.  The other four members comprise two clergymen and two

laymen.  Each of the five is appointed permanently, and each

takes an oath of independence.

     The Commission, for reasons similar to those pertaining to

the Consistory Court, finds that the Court of Arches also

complied with the requirements of Article 6 (Art. 6) as to

independence and impartiality.

     It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2)

of the Convention.

2.   The applicant also alleges violation of Article 6 (Art. 6)

of the Convention in other respects.  In particular, he alleges

violation of Article 6 para. 2 (Art. 6-2) of the Convention.

     Insofar as the applicant's further complaints relate to

criminal proceedings, the Commission recalls that it has found

that the proceedings involving the applicant did not determine

a criminal charge within the meaning of Article 6 (Art. 6) of the

Convention. To this extent, therefore, the Commission cannot deal

with the applicant's complaints.

     With regard to the judicial decisions in the case, the

Commission recalls that, in accordance with Article 19 (Art. 19)

of the Convention, its only task is to ensure the observance of

the obligations undertaken by the Parties to the Convention.  In

particular, it is not competent to deal with an application

alleging that errors of law or fact have been committed by

domestic courts, except where it considers that such errors might

have involved a possible violation of any of the rights and

freedoms set out in the Convention.  The Commission refers, on

this point, to its constant case-law (see e.g. No. 458/59, Dec.

29.3.60, Yearbook 3 pp. 222, 236 ; No. 5258/71, Dec. 8.2.73,

Collection 43 pp. 71, 77 ; No. 7987/77, Dec. 13.12.79, D.R. 18

pp. 31, 45).

     To the extent that the Commission is nevertheless able to

consider the applicant's complaints under Article 6 para. 1

(Art. 6-1) of the Convention, it recalls that the proceedings,

which it has found to have been civil in character, lasted from

approximately May 1989 to May 1992, that is a total of three

years.  Having regard to the fact that the proceedings were

repeated, and to the criteria established by case-law and having

regard to all the information in its possession, the Commission

finds that the length of the proceedings complained of did not

exceed the "reasonable time" referred to in Article 6 para. 1

(Art. 6-1) of the Convention.

     To the extent that the applicant complains about prejudicial

press coverage of the case, the Commission notes that the

applicant has not submitted any evidence as to the nature of the

reporting of the events, nor has he shown that that coverage

affected the fairness of the trial in any way.  In particular,

although it is true that the applicant alleges that the principal

witness for the Church sold her story to a national newspaper,

he has not shown what, if any, impact that had on the

proceedings.

     The Commission concludes that the remainder of the

application is manifestly ill-founded, within the meaning of

Article 27 para. 2

(Art. 27-2) of the Convention.

     For these reasons, the Commission, by a majority,

     DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission            President of the

Commission

       (H.C. KRÜGER)                         (C.A. NØRGAARD)

 

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