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Court rules that Church is liable for crimes of priests

By on Thursday, 10 November 2011

The High Court in London (Photo: PA)

The High Court in London (Photo: PA)

A court has ruled that the Catholic Church can be held legally liable for the crimes of abusive clergy.

The ruling by the High Court in London for the first time defined in British law the relationship of a priest to his bishop as that of an employee to an employer, instead of seeing the priest as effectively self-employed.

This means that a bishop and a diocese can be punished for the crimes of a priest. Survivors’ groups hope that it will also mean that many people who claim to have been abused by clergy will be able to claim compensation more easily.

The court granted the trustees of the Diocese of Portsmouth extra time to appeal the decision.

The case involves a 47-year-old mother of three, referred to only by the initials JGE, who claims she was repeatedly sexually assaulted by Fr Wilfred Baldwin as a seven-year-old girl in The Firs children’s home in Waterlooville, in southern England, in the early 1970s.

She claims that she also was attacked in the dressing room of a church on the day she made her first Communion.

Besides the Diocese of Portsmouth, she is also seeking damages from the English province of the Sisters of Our Lady of Charity, which ran the home, because she said the nuns witnessed the abuse but did not intervene.

The court was not asked to judge the truth of the allegations but was specifically asked, as a preliminary hearing on the case, to rule on the question of whether the “relationship between a Catholic priest and his bishop is akin to an employment relationship”.

Justice Alistair MacDuff said that although the priest had no formal contract of employment there were “crucial features” that made a bishop vicariously liable for his actions.

He said the Church gave Fr Baldwin the “premises, the pulpit and the clerical robes” and that he was given full authority and free rein in the community to “act as a representative of the church.”

“Whether or not the relationship may be regarded as ‘akin to employment,’ the principal features of the relationship dictate that the defendants should be held responsible for the actions which they initiated by the appointment and all that went with it,” said the judge.

JGE first made her complaint in 2006 when police officers investigating complaints against Fr Baldwin contacted her to ask if she had been abused by him. Inquiries concluded the same year with the death of the priest, at the age of 75.

JGE is now seeking compensation for pain, injury, humiliation and hurt feelings, saying that she suffered post-traumatic stress disorder, a borderline personality disorder, and that she has attempted suicide as a result of the abuse.

The court ruling was welcomed by the victims’ support group, Ministers and Clergy Sexual Abuse Survivors.

But in a statement the group also expressed frustration on behalf of “hundreds if not thousands of victims” who were seeking damages but would have to await the “outcome of the appeal now to be brought by lawyers employed by the Catholic Church seeking to have this latest ruling overturned”.

The group claimed that while the Church spent millions of pounds attempting to avoid liability “the victims receive no support, and their suffering continues as they are re-traumatized by having to go through such adversarial and hostile legal processes to achieve justice”.

The Portsmouth Diocese said in a statement that it was “committed to creating a safe environment for all” and that it “works hard to ensure the welfare of children and vulnerable individuals.”

“The judgment of Mr Justice MacDuff involves complex and fundamental legal issues which remain the subject of legal proceedings,” it added. “In the circumstances, the Diocese of Portsmouth does not consider it appropriate to make any further comment about the case at this time.”

  • thomasl

    send those priests to court and judge them according to the law

  • http://twitter.com/jhytwit Jacqueline

    Good , no one should be above the law

  • Anonymous

    In English law clergy – Anglican or otherwise - have always been regarded as officeholders, not employees. I cannot see why this court has come to a different conclusion.

  • Anonymous

    This isn’t about any priests who may have done wrong, this is about the idea that the Church itself can be sued for damages for what errant priests may have done.

  • Tyson

    we are all human beings,and every one has got fellings.( what am doing should not be somebody’s tolk of the day.but what am saying.) he is luking but the way he did it was not proffession.judge not, that you will not be judged

  • Anonymous

    I would hope that the appeal court reaches a different conclusion. This ruling has overturned an established principle and also it means that innocent parishioners will have to pay for the crimes of long-dead people with whom they have no connection.

  • Anonymous

    To ardent Catholics the judgement may seem unfair. However, whether a person is an employee or not is driven by tax law and the law restricts many people from defining themselves as self employed including actors and temporary workers as the tax provisions for the self-employed are far more generous than those for employees.

    Consequently, although I am not a lawyer, I was not surprised by the decision.

  • Charles

    Irrespective of the rights and wrongs of the case, how is it that a dead man is being named and shamed in the worldwide media before the case is even tried and tested in the courts. If he was inded guilty of these terrible acts, that will emerge at the right and proper time and so be it. Until such time, as far as I am concerned he is innocent and having been one of his parishoners for the latter years of his lfe, I would testify that I found hime to be one of best priests I have had the privilege to be ministered by. I find it impossible to believe he could have ever carried out such acts and the way he is being caricatured in the media and blogs as some sort of evil monster is highly offensive. If of course, my judgement of him proves to have been wrong, then I will have to change my views. On a different theme, I am afraid I do not understand how receiving large compensation payments heals or helps somene who has suffered abuses of the sort alleged against Fr Wilf.

  • Tyrone Beiron

    Is the Queen legally responsible for the faults and failings of those who hold office under her? Are all priests to be treated as “minors” under the law to their bishop as their legal guardian? Is there a provision, under an Act of Parliament that stipulates this and supported by common law? What crap is this! Nothing more than biased jurisprudence. Priests are legally individuals with their own rights as citizens which are not diminished as a result of taking Holy Orders. This is different if he acted on behalf of the diocese, or that the diocesan authorities were a party to his wrong doing in some way. One down for British jurisprudence and Lord Acton might as well be turning in his grave for this lack of precedence…

  • Issac Lazarus

    Like everyone else you will have to read the judgement of the court in order to understand. Why be an illiterate ass and make profound idiotic comments about English jurisprudence. You pass judgement as though you were passing wind; which amounts to much the same thing. Would it not be better that you read the findings of the case first before exposing yourself as profoundly uneducated..Issac Lazarus LLB (Hons)

  • Anonymous

    What a pompous ass you are!  We don’t all have LLBs after our names, but we are entitled to give our opinions on some aspects of the law as we see them.
    Deal with it.

  • Anonymous

    If an inebriated priest drives home, and knocks down and injures a pedestrian, will his bishop be sued for damages by the injured plaintiff?  No, I don’t think so.

  • Issac Lazarus

    Yes you are entitled to give reasoned and logical opinions based on the evidence of the court. But for you to spout ill conceived trite and pointless legal opinion that is without coherence denotes that you are devoid of sound judgement and not worth anything. You are right however insofar that you are entitled to be as thoughtless as you wish to be.

  • Anonymous

    I suspect that you are not a lawyer at all, in spite of your pretentious nonsense with the “LLB” after your name.  You have twice been censored by the moderator for your offensive comments.  It is difficult to imagine a professional lawyer being so careless in his public expressions.

  • Issac Lazarus

    Not true. The moderator can verify that I was not unprofessional or offensive. The moderator is right to be cautious and is duty bound to protect all bloggers from material that might be hurtful especially if it was too near the truth. I fully accept the terms of blogging. It is the same in court. As to your opinion of my professional qualifications, I do not care what you think!!

  • Cjkeeffe

    The defence here in English common law, is yes the bishop is the priest’s employer and yes is liable as employer for his employees acts committed within the remit of his job. But if the employee goes on a frolic of his own. then the employee is on his own. I’m probably right to say having sex with a child is not in the ordinary job description of as priest thus bishop is not liable for it.

  • David Corrigan

    I do not know which “Inns of Court” you belong, but you are gravely misguided in your supposition. If a priest, Brother or Nun abuses a child at any time under the auspices of diocesan authority, they are most certainly liable in civil and criminal law and so is the Bishop or Abbot (Abbess).  One has to understand the boundaries and concept of authority within Holy Orders to appreciate that a cleric relinquishes his/ her will to that of a Bishop. The Catholic Church has never considered child sex as a problem as indeed Catholic Church history will attest. It was only in 1901 that child abuse reached the statute books, and until then it was thought to be a church matter only within ecclesiastical law. The Catholic Church has paid only scant attention to the civil and criminal law in any country. That is until now. Even today in Ireland, it is still written in Bunreacht na hÉireann regarding “The Special Position” of the Catholic Church that: “Catholic clerics cannot be prosecuted by the Police or The Director of Public Prosecutions without the express permission of the Papal Nuncio”. This arcane and archaic law is still enshrined in Bunreacht na hÉireann that has never been altered since it was written and this section has never been removed from Gaelic version; only from the English language version of The Constitution of Ireland. That audicity is “Deviance in Technicolor”. Before making hostile retorts, and protestations of indignation please check this premise with a constitutional lawyer.

  • Cjkeeffe

    You may be right but your reference to the Irish Constitution (IC) is not included in the text of the constitution on this link http://www.taoiseach.gov.ie/attached_files/Pdf%20files/Constitution%20of%20Ireland.pdf so perhaps you are wrong. Indeed the reference to the special position of the Catholic Church in the IC was removed in 1973. you may wish to reference this on line link http://www.compactlaw.co.uk/free-legal-information/employment-law/employer-and-employee-liability.html , ““An employer is liable for acts done by employees during their time at work. This applies to all forms of discrimination. However, an employer can use the defence that they have done everything that they reasonably could to prevent it from happening. An employer can be liable for acts committed by the employee where the employee has carried out their job in a particular way. But, also for acts that have nothing to do with the employee’s job, but were committed during work time. Unless it can be shown that the employee was “on a frolic of his own”, eg. a prank.” I would contend that given that the priest makes a promise of chastity that his having sex with anyone (let alone a child) is indeed a frolic of his own. Whilst case law has narrowed the margin of appreciation in liability for sexual assault the person MUST be acting within the context of his employment (Lister v Helsey Hall Ltd 2001). Further one need not be in an Inns of Court to be capable of reading a legal paper. Do you belong to an Inns of Court or so qualified. Perhaps you would like to identify your sources?   Presumable prior to 1901 an offence against a child would be prosecuted under the Offences Against the Person Act 1864? I remain impressed that you are able to read IC in its original language.  You are also wrong that the Catholic Church has never regarded child abuse as a sin. The Didache or teachings of the twelve apostle expressly condemns interfering with minors. Further Thomas Aquinas is clear that one does not empty ones skull of their brain when they take Holy Orders/vows. And the Code of canon Law 1983 enshrines basic rights for all the Christian faithful – yes even clerics and religious.

  • Anonymous

    “The moderator can verify that I was not unprofessional or offensive.”

    I read your first comment, in response to Tyrone Beiron.  It was so offensive that the moderator quite rightly deleted it in its entirety.  You have a peculiar idea of what is or what is not offensive.

  • Parasum

    “The ruling by the High Court in London for the first time defined in British law the relationship of a priest to his bishop as that of an employee to an employer, instead of seeing the priest as effectively self-employed.”## It will be very interesting to see what – if anything – comes of that ruling. Especially in other trials of religious personnel, in Britain & out of it. It’s high time the Vatican ceased to be able to wriggle out of its obligations to the real victims of these crimes by arguing that predator personnel are not its employees. The Church has to be answerable – and punishable – for its crimes, whether it wants to be or not.

  • http://www.facebook.com/people/Jack-Hughes/100000562751914 Jack Hughes

    Another argument in favour of restoring  Ecclesiastical courts

  • Wolfgang Munster Schnozle

    What a poor mistake it was to attempt to conceal the extent of homosexual priestly activety in the Roman church. All this does is make it look silly and stupid in its critisism of the Anglican catholic church over the issue, notwithstanding any justification for doing so.

  • http://twitter.com/PJTPOOAM Thomas Poovathinkal

    SINCE THE CHURCH (THE OFFICIALS OF ORGANIZED CHRISTIANITY) HAS  SET ASIDE  GOD’S WORD

    AND APOSTLESHIP AND GROWN WORLDLY-WISE AND POWERFUL OVER THE CENTURIES, IT IS NOW

    GETTING PUNISHED EVEN BY IT’S CHILDREN BY INVOLVING IT IN ALL SORTS OF RIDICULOUS,

    FRIVOLOUS AND MISPLACED ACCUSATIONS AND PLAY OF WORDS INSTEAD OF PRESENTING

    ACTUAL FACTS IDENTIFIABLE IN TIME AND SPACE WITH A REASONABLE GOOD SENSE. AND

    CHURCH ITSELF IN THIS CASE,  TO MAKE MATTERS WORSE,  IS JUMPING TO GRASP THE TRAP. GOD’S

    JUDGEMENT!

  • http://twitter.com/PJTPOOAM Thomas Poovathinkal

    WHEREVER THE CHURCH (THE OFFICIAL ONE) HAS CROSSED ALL  THE LIMITS BY PAYING SALARY

    (AND NOT STIPEND  OR  MAINTENANCE)  – ONE WONDERS WHETHER IT IS TRUE OR NOT – TO ITS

     PRIESTS LIKE ANY WORLDLY COMPANY OR INSTITUTION HAS IT NOT PROVED HOW UNWORTHY IT

     IS…..

  • http://twitter.com/PJTPOOAM Thomas Poovathinkal

    “I would hope that the appeal court reaches a different conclusion. This
    ruling has overturned an established principle and also it means that
    innocent parishioners will have to pay for the crimes of long-dead
    people with whom they have no connection.”

    NOW ANY LOSE CHARACTER  OR ANYBODY NEEDING MONEY CAN ANY TIME ANYWHERE

    ACCUSE ANYBODY DEAD OR ALIVE AND GET PAID FOR IT IN BIG CASH WITH THE SUPPORT OF

    THE JUDICIARY;  CRIMES NEED TO BE IDENTIFIABLE IN THE LIGHT OF COMMON SENSE OF

    HUMANITY…. MERE WORDS ARE NOT ENOUGH; THEY ARE NOT PROOF.

    JUST LOOK, HERE GOES THE REPORT ABOUT DOMINIQUE STRAUSS-KAHN (  A SEXER  ONE WONDERS?), FORMER IFM CHIEF IN ONE OF THE MOST OUTSTANDING NEWSPAPERS IN INDIA,

     ” DSK DEMANDS TO TESTIFY IN PROBE (T.I.NOV.12, 2011) – The US case against him eventually collasped over doubts about the alleged victim’s testimony, but not before it had destroyed Strauss-Kahn’s hopes of running as the Socialist candidate in next year’s French presidential race.

    On his return to France he faced new allegations.

    First, a young writer accused him of attempting to rape her in 2003 but, while prosecutors said there was prima facie evidence of sexual assult, the case was too old to pursue.”

    HERE IS COMMON SENSE TO FIND OUT TRUTH  SOUGHT OUT IN ITS WHOLE CONTEXT.

  • David Armitage

    The Walrus is obviously a constitutional lawyer.  The Carpenter?

    The Walrus and the CarpenterWere walking close at hand;They wept like
    anything to seeSuch quantities of sand:”If this were only cleared
    away,”They said, “it would be grand!”

    “If seven maids with seven mopsSwept it for half a year.Do you
    suppose,” the Walrus said,”That they could get it clear?”
    “I doubt it,”
    said the Carpenter,And shed a bitter tear

    If you have bottomless coffers, filled by the faithful over decades, you can keep plaintiffs at bay until they die of old age.  No wonder the Carpenter weeps.  Mill stones are hard to come by, even on Antiques Road Show.

  • http://twitter.com/PJTPOOAM Thomas Poovathinkal

    NOW ANY LOSE CHARACTER  OR ANYBODY NEEDING MONEY CAN
    ANY TIME ANYWHERE

    ACCUSE ANYBODY DEAD OR ALIVE AND GET PAID FOR IT IN BIG CASH WITH THE SUPPORT
    OF

    THE JUDICIARY;  CRIMES NEED TO BE IDENTIFIABLE IN THE LIGHT OF COMMON
    SENSE OF

    HUMANITY…. MERE WORDS ARE NOT ENOUGH; THEY ARE NOT PROOF.

    JUST LOOK, HERE GOES THE REPORT ABOUT DOMINIQUE STRAUSS-KAHN (  A
    SEXER  ONE WONDERS?), FORMER IFM CHIEF IN ONE OF THE MOST OUTSTANDING
    NEWSPAPERS IN INDIA,

     ” DSK DEMANDS TO TESTIFY IN PROBE (T.I.NOV.12, 2011) – The US case
    against him eventually collasped over doubts about the alleged victim’s
    testimony, but not before it had destroyed Strauss-Kahn’s hopes of running as
    the Socialist candidate in next year’s French presidential race.

    On his return to France
    he faced new allegations.

    First, a young writer accused him of attempting to rape her in 2003 but, while
    prosecutors said there was prima facie evidence of sexual assult, the case was
    too old to pursue.”

    HERE IS COMMON SENSE TO FIND OUT TRUTH  SOUGHT OUT IN ITS WHOLE CONTEXT.

     

     

  • Mark O’Sullivan
  • Parasum

    Maybe even ecclesiastical prisons…

  • Parasum

    This *has* to be a joke (in very poor taste). 

  • jiver

    I am a committed and lifelong Catholic,
    who happens to mix in extremely non-Catholic circles, and am very aware of the
    reputation of my beloved Church. If we cannot improve our standing in England, we
    risk becoming a pagan country.
    If the final result of this case is that the accuser was telling
    the truth and that she was abused by Fr Baldwin, but will not be compensated by
    the diocese, would that be right and just?
    Would it also be right and just that the Bishop
    takes no responsibility for the actions of his priests just because of a
    technicality about employment law?
    And finally, does this seemingly un-Christian
    attitude reach out to any kind of non catholic person?
    My answer to all these questions would be “no”.
    A large part of my Church, in this country at least, is out
    of touch with the real world. How am I supposed to justify, let alone promote
    it?
    I am aware of what happened at St Benedict’s, Ealing, my
    namesake school, which I narrowly escaped from being sent to. I have been
    reading the blog by Jonathan West, which is the best source I can find on the
    situation there.
    To me and to those outside the
    Church, the Church presents as is still dragging its feet on this matter
    of abuse, for reasons I have to guess at, and other people will assume to be
    the worst.

  • Chris Morley

    The priest is named because ‘open justice’ (which includes naming the defendant) is an ancient and important principle of law in England and Wales and in most other jurisdictions. Justice needs to be open so we can see it being done and therefore can trust the result. The effect on innocent defendants can sometimes be harsh. Her identity is protected in the media by initials because the court has ruled that is necessary protection for a vulnerable person. If there wasn’t anonymity in such cases few vulnerable people would ever come forward with accusations and guilty people would escape justice.

    None of us can judge whether or not he did what he is accused of.  Unfortunately, a significant proportion of cases of rape and child abuse were committed by apparently well respected, good priests and religious. It’s wise to keep an open mind until the court has heard and ruled on the evidence.

    The only civil legal remedy available for rape and child abuse is damages in the form of financial compensation. Sometimes compensation really does help, it can for example, pay for counseling. Often the real benefit comes more from public recognition by the law’s judgement that a serious wrong was done. Court cases are also a powerful way of encouraging organisations to face up to and take responsibility for their failings.

  • Chris Morley

    If you read the judgement here http://www.bailii.org/ew/cases/EWHC/QB/2011/2871.html, or an informed legal commentary such as here http://ukhumanrightsblog.com/2011/11/09/bishop-can-be-vicariously-liable-for-priests-sex-abuse-rules-high-court/ you will see that the judge applied established legal principles of vicarious liability to the facts of this case. This is the first case in England and Wales where a court has had to decide whether a Diocese and priest have a relationship ‘akin’ to employer and employee.

    The Bishop’s recent statement http://www.portsmouthdiocese.org.uk/docs/The-Diocese-Fr-Wilf-Baldwin.pdf
    says they haven’t yet decided whether to appeal. As the human rights blog comments
    “though the judgment ends up with a thoughtful and
    reasonable approach to a difficult area of law, much of the reasoning
    considers cases that argued a different point of law or were in
    different jurisdictions. This does not mean the end result is wrong, but
    it certainly leaves room for argument.

    This will not be the last word on the case as permission has been
    granted for appeal to the Court of Appeal. Given the potentially
    enormous financial consequences of the decision being left to stand,
    this case may well end up in the Supreme Court.”

    The bishop’s statement also plainly says that the parish won’t have to pay because the legal action and any resulting damages are covered by insurance.

  • Chris Morley

    The person taking action is female. This is about child abuse, paedophilia.

    It has nothing at all to do with homosexual activity / gay priests, or any dispute about this between Roman Catholics and Anglicans.

  • Chris Morley

    But this is a different type of situation. It is unlikely a bishop would be liable for any injury caused by a drunken priest’s driving.  The Judgement says this
    (para 32) “In holding that the bishop was liable for the wrongful actions of the priest, the Chief Justice said:

    ‘…. Second, the wrongful act must be sufficiently connected to the conduct authorised by the employer”; per McLachlin CJ at paragraph 20;’ ” In contrast, the High Court’s ruling means abuse / rape by a priest  is ‘sufficiently connected to the conduct authorised by the employer’.
    Here’s the ruling: http://www.bailii.org/ew/cases/EWHC/QB/2011/2871.html

  • Chris Morley

    Both of you can now read the judgement http://www.bailii.org/ew/cases/EWHC/QB/2011/2871.html where the High Court decided that in principle a diocese can be held liable in cases of rape / child abuse by a priest, and for the decision on any appeal. 

    We all need to wait to see if the diocese tries to defend itself on the basis of “they have done everything that they reasonably could to prevent it from happening.”
    If such a defence is attempted, it is unlikely to succeed because the events complained of happened over 30 years ago, and in para 29 of the judgement both sides agreed “(ii) There is effectively no control over priests once appointed. Within the
    bounds of canon law, a priest is free to conduct his ministry as he sees
    fit, with little or no interference from the bishop, whose role is
    advisory not supervisory.”

    The bishop’s statement says “…. The primary reason that we are defending this claim is that, at the
    time the Claimant was resident at the home, Fr Baldwin was based at the
    other end of the Diocese and had no connection with the children’s home.
    The Diocese does not therefore accept the Claimant’s allegations
    against Fr Baldwin.” http://www.portsmouthdiocese.org.uk/docs/The-Diocese-Fr-Wilf-Baldwin.pdf
    We need to wait for the claim itself to come to court and for judgement next year to discover what really happened.

  • Chris Morley

    I agree the church is in denial and dragging its feet about abuse and if you read the bishop’s statement http://www.portsmouthdiocese.org.uk/docs/The-Diocese-Fr-Wilf-Baldwin.pdf it seems to be disingenuous.

    Whether a diocesan bishop is liable
    in principle for the actions of his priests was the substance of the
    issue decided by the High Court. Yet the bishop claims “the Diocese was
    not seeking to evade responsibility for the actions of its priests.”

    The bishop can’t have it both ways. Disputing vicarious liability
    means he was seeking to establish the principle that bishops
    can evade responsibility for the actions of their priests. Para 5 of judgement: “The
    Defendant contends that Father Baldwin was not its employee (nor was the
    relationship “akin to employment”) and that [there was no] vicarious
    liability … “).

    The bishop’s “primary” defence, that the accused priest lived on the
    other side of the diocese at the time and had no connection with the
    children’s home where JGE lived, will be relevant only at the hearing
    into the claim itself.

    The bishop’s own statement is evidence suggesting that the true motive for disputing
    vicarious liability in this case was on the principle, presumably on behalf of the Catholic Bishops of England and Wales, of “seeking to
    evade responsibility for the actions of its priests.”

  • Anonymous

    The High Court is wrong.

    I quote:

    “A British bishop has criticized a court decision allowing for a
    diocese to be held liable for sexual abuse by a priest. Bishop
    Crispian Hollis of Portsmouth acknowledged that a bishop should be held
    accountable for abuse if his negligence was a contributing factor in the
    case. He went on:

    However, this case was not concerned with negligence, it
    was concerned with whether a bishop should be automatically liable for
    the actions of a priest simply by virtue of the fact that he or one of
    his predecessors appointed the priest. The diocese is aware of no other
    organisation which can be held liable for the actions of its office
    holders in this way.

    Bishop Hollis also pointed out that the priest accused of sexual
    assault, the late Father Wilfred Baldwin, has had no opportunity to
    defend himself against the charge.”

    (Catholic World News)

  • Chris Morley

    Thanks Geoffrey
    The Appeal Court will decide if the High Court made the wrong decision, not the bishop, (nor you or I). If there is no successful appeal, then the High Court was right.

    The legal experts at the UK Human Rights blog comment “though the judgment ends up with a thoughtful and reasonable approach to
    a difficult area of law, much of the reasoning considers cases that
    argued a different point of law or were in different jurisdictions. This
    does not mean the end result is wrong, but it certainly leaves room for
    argument.” The diocese can appeal if it disagrees with the High Court, which is our society’s independent legal authority for deciding these matters.

    Next year the High Court will decide, when the main case comes to court, whether the diocese was ‘negligent’. The bishop claims ‘this case was not concerned with negligence’, but this is just splitting hairs. The High Court has just dealt with the principle of whether a diocese could be held to be negligent. When the case itself goes to trial next year in the High Court, diocesan negligence will be exactly what will be decided.

    The bishop says the diocese doesn’t know of any other organisations that are vicariously liable for the actions of “office holders”. The diocese / bishop need to read the judgement.

    Para 21 and 24 both concern cases of crimes committed by policemen; police, like priests, are also ‘office holders’. In both those cases the courts held there was vicarious liability because, despite being ‘office holders’, they were ‘akin’ to being employees. [page 10 here for a legal list and discussion of various types of 'office holders', including clergy: http://www.oup.com/uk/orc/bin/9780199288335/honeyball_chap02.pdf ]

    The judge agreed in Para 29 “(vi) It seems clear to me that – as Lord Faulks QC submitted – ….. Father Baldwin would have
    been considered as a holder of office rather than an employee of the
    Defendants.”

    Nonetheless, the judge said, Para 31 “I have to determine whether vicarious responsibility
    may attach to the relationship between Father Baldwin and the
    Defendants, notwithstanding that it was a relationship which differed in
    significant respects from a relationship of employer and employee.”

    The bishop / diocese clearly doesn’t like it, but the High Court judgement means that although priests are ‘office holders’, a diocese can be vicariously liable for the sexual abuse crimes of its priests.

    This seems only just and reasonable because Portsmouth decided to argue this point, whereas the Archdiocese of Birmingham accepted that their abusing priest was an employee, when the facts were similar. MAGA v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256 http://www.bailii.org/ew/cases/EWCA/Civ/2010/256.html

    A Catholic bishop wingeing about the High Court’s decision in a child abuse case when he clearly hasn’t read or understood the judgement doesn’t do the bishop or the church’s heavily tarnished reputation any credit. A wise and humble man would be well advised to shut up, suck it up and if he really must, appeal.

  • Anonymous

    Name one other organisation whose executive officers can be indicted for crimes committed by their subordinates, without the knowledge or consent of these superiors.
    I repeat: it is a grave miscarriage of justice for a Catholic bishop to be arraigned before a court, accused of being “vicariously liable” (whatever that may mean) for ANY crime committed by a priest serving in his diocese, without that bishop’s knowledge or consent.  The mere fact that a priest is an “employee” of the diocese is just not good enough.  It would not be grounds for litigation in any other organisation.
    If the superior can be shown to have been entirely unaware that the offence was being committed, he would not be held liable.
    I repeat: the High Court ruling is wrong, and it will be proved to be wrong at the inevitable appeal.

  • Chris Morley

    The bishop’s statement made a similar point, that the diocese doesn’t know of any other organisations that
    are vicariously liable for the actions of its  “office holders”.

    Decisions in court cases in the common law system we have in England and Wales sometimes
    develop and even change our understanding of the law. This High Court
    decision is one of those decisions that extends and adapts the law, at
    least for RC diocesan priests. [The facts will be different for CoE
    clergy, but I suspect not different enough to escape vicarious liability
    in future.]

    I suggest you read an expert legal blog to understand what has changed and why http://ukhumanrightsblog.com/2011/11/09/bishop-can-be-vicariously-liable-for-priests-sex-abuse-rules-high-court/ , and for the full story and reasoning read the judgement itself http://www.bailii.org/ew/cases/EWHC/QB/2011/2871.html

    Para 21 and 24 of the judgement both deal with other cases arising from crimes committed by policemen; police, like priests,
    are also ‘office holders’. In both those cases the courts held their ‘employer’ was
    vicariously liability because, despite being ‘office holders’, the policemen were
    ‘akin’ to being employees. [see page 10 here for a legal list and discussion
    of various types of ‘office holders’, including clergy: http://www.oup.com/uk/orc/bin/9780199…  .

    Despite the priest being an ‘office holder’, the judge concluded the diocese does have vicarious legal responsibility for abuse by its priests, based on the facts of the case and legal precedents in related cases.

  • Chris Morley

    Geoffrey
    I understand the High Court’s decision doesn’t seem fair to you. Please note that your persecution sensors are a little too touchy, a bit like a smoke alarm ringing when there’s no fire: your words “It would not be grounds for litigation in any other organisation.” Very many different types of organisation do face civil claims based on vicarious liability every year. It’s just that very few cases appear in the papers. A more typical example might be a shop discriminating by refusing to serve someone with a disability. That person could claim compensation for hurt feelings. The shop’s executives are liable, even if the discriminatory action was by a shop worker and the executives hadn’t a clue it had happened.

    Please understand that the bishop has NOT been ‘indicted’, nor ‘arraigned’ for, nor ‘accused’ of any crime.

    Understand too that the High Court is never a criminal court; the High Court only deals with civil claims for things like compensation; it doesn’t ever consider or decide if people are ‘guilty’ or ‘not guilty’. It simply decides if someone is ‘liable’ to pay or not. Our criminal courts are Magistrates Courts and Crown Courts. No-one can be charged now with any crime that might have happened over 30 years ago.

    It’s all rather confusing to most people because this particular High Court claim is unusual and just happens to relate to an alleged crime.

    Most High Court claims for damages do not concern any crime. High Court cases are usually about things like negligence (eg negligence by hospitals in their treatment, by drivers having accidents causing personal injury). This case is also about alleged negligence, and nothing else.

    Please note that the High Court has NOT said the bishop / diocese was actually negligent. All that has happened so far is a preliminary ruling has been made on the principle that the diocese, as Fr Baldwin’s ‘employer’, could possibly be held liable for alleged negligence.

    The High Court has not yet heard any evidence at all about the alleged rape / abuse. Next year the High Court will hear the evidence in the actual case. A judge will then make a decision based on the strength of that evidence. It will not be easy for JGE to prove her claim about something over 30 years ago. The bishop says the priest worked on the other side of the diocese and had no connection with the residential home at the time and so didn’t have any contact with her. If that is true, it will be hard for the claimant to show Fr Baldwin could possibly have met her repeatedly or harmed her in any way, and if they can’t prove that convincingly, the diocese cannot be liable for negligence.  

    It is NOT a crime to be ‘vicariously liable’.

    Vicarious liability doesn’t even mean the diocese was at fault. Certainly this bishop is not personally blamed for what happened over 30 years ago when someone else was bishop.

    Vicariously liability is a long established legal principle. It is how our common law achieves two objectives for the common good. First it provides a way of compensating people harmed by the actions or neglect of employees; and secondly it encourages employers to take reasonable steps to reduce the risk of employee’s actions or neglect harming other people.
    If you went into a shop and were electrocuted while shopping, the employer is vicariously liable to pay you compensation for the shock and harm caused to you. Employers should have public liability insurance against the risk of injury to the public (the diocese does have this and this is paying for the case). Good employers should have policies (eg to employ reputable electrical contractors) and train their staff to reduce the risks of harm to the public. Ignorance is no excuse in cases of vicarious liability.

    The bishop is NOT being targeted by the law because he is a catholic bishop / this case happens to relate to abuse.

    We will both wait with interest to see what the Appeal Court may decide. Meanwhile I encourage you to read and reflect on the facts rather than your fears.

  • Anonymous

    “Whether a diocesan bishop is liable in principle for the actions of his priests was the substance of the issue decided by the High Court. Yet the bishop claims “the Diocese was not seeking to evade responsibility for the actions of its priests.” ”

    You are being economical with the truth.
    Bishop Hollis agreed that a bishop should be held responsible if he knew about, or colluded with, or passively permitted, the commission by one of his priests of such an offence.  This is clearly the right and proper course of action.
    However, if the bishop concerned was totally ignorant of the misconduct, and would most certainly have forbidden the priest to commit it if he had known about it, then it is a miscarriage of justice to indict that bishop on a charge of “vicarious responsibility” for the priest’s crime.  No other organisation would be held accountable in this manner, only the Catholic Church, and we all know why that would be, don’t we?
    Whether the Church is “in denial” or “dragging its feet” in this matter is totally irrelevant.  The issue is whether an innocent person should be charged with the same offence as the true criminal, simply because they had a working relationship, and were co-operating together in a joint venture.

  • Anonymous

    I’m not sure if the pope actually ever said that. But simply reading the quotation as given (whether it’s authentic or not), the pope is not suggesting that he agrees with the situation that “In the 1970s, paedophilia was theorised as something fully in conformity with man and even with children.” Check out this article: http://www.firstthings.com/article/2009/11/how-pedophilia-lost-its-cool

    The article notes that as late as 1989 The Nation published a piece in appreciation of the pleasures of young boys. But when the leftist intelligentsia does it, it’s, you know, all in good fun, they’re just having a good time. Everyone was pretty much high as a kite at that time, so they just did what feels good, right?

  • James H

    Exactly. I can just see the pound signs lighting up in people’s eyes.

    In Ireland some claimants were found to be working their way around the country, suing assorted priests and making a killing. Their identities had been protected, so the judge would never know if they’d pulled the same trick somewhere else.

    In the US, the diocese of Boston routinely reached for its collective pocket when one of its priests was accused. Because they were so ready to pay out, some priests went to jail on the strength of fabrications. the blog These Stone Walls is informative.

    http://www.thesestonewalls.com

  • Chris Morley

    Geoffrey
    I had no intention of being ‘economical with the truth’ and regret that you have taken that impression.

    “However, if the bishop concerned was totally ignorant of the misconduct,
    and would most certainly have forbidden the priest to commit it if he
    had known about it, then it is a miscarriage of justice to indict that
    bishop on a charge of “vicarious responsibility” for the priest’s
    crime.  No other organisation would be held accountable in this manner,
    only the Catholic Church, and we all know why that would be, don’t we?”

    Two points here:
    First, as I have pointed out in other posts above, including one in direct response to you where you also complained about the ‘injustice’ you see in ‘vicarious liability’, the law and Court’s decision means that a Bishop’s ignorance of what his priest did is no defence to a claim.

    You call that a ‘miscarriage of justice’ and that is a point of view, but it is not one any judge in this country would agree with in cases involving vicarious liability. I can’t change your view, but we must all either accept the law as it stands, or persuade Parliament or the Courts to change long established law. Since the Bishop’s expert barrister didn’t try to argue a miscarriage of justice, I suggest you accept the legal reality.  

    Secondly, you choose to see this as evidence of persecution of Catholics (“No other organisations would be held accountable…”) and I have also dealt with this point previously.
    I told you then “Very many different types of organisation do face civil claims based on
    vicarious liability every year. It’s just that very few cases appear in
    the papers. A more typical example might be a shop discriminating by
    refusing to serve someone with a disability. That person could claim
    compensation for hurt feelings. The shop’s executives are liable, even
    if the discriminatory action was by a shop worker and the executives
    hadn’t a clue it had happened.”
    I’m not responsible for you choosing not to listen to and accept the legal reality. Did the Bishop’s barrister try to argue this? No.

    “The issue is whether an innocent person should be charged with the same
    offence as the true criminal, simply because they had a working
    relationship, and were co-operating together in a joint venture.”

    Again I answered this point in the same response to you above. I carefully explained that the Bishop (who I agree is totally innocent of what the priest is alleged to have done over 30 years ago) has NOT BEEN CHARGED. I emphasised then and do so again, the Bishop is not accused of any crime.

    I pointed out carefully that cases in the High Court are all CIVIL, not criminal matters; that the High Court deals with compensation claims for negligence, never with ‘guilt’ or ‘innocence’, but with whether the person or organisation was ‘liable’ or ‘not liable’.

    I also carefully explained that the way the law of vicarious liability works is that the ‘employer’ (the Bishop) IS responsible for some actions of his ‘employee’ the priest in his ministering role, and the Court ruled that the Bishop is therefore potentially liable for damages for the alleged child abuse by the priest, if this is proved at the full hearing next year. 

    The case is a claim for compensation. That is all. The Court has yet to hear any evidence in support of the claim, or the Bishop’s defence (which as I have pointed out, is that the priest worked on the other side of the diocese and had no contact with the residential home where she lived as a girl, so he could not have had any contact to harm her. We have to assume the Bishop has consistory records to support that defence, or he would not have made the statement.

    I have also previously explained that it will be very difficult for this vulnerable woman to prove her allegations of harm through rape and abuse over 30 years ago. The judge will weigh up the evidence.

    I cannot do any more to help you understand how the law works. If you asked the Bishop’s barrister he would make the same points.

    Jesus and Catholicism teaches us not to judge others. Therefore I was surprised to read what I see as an unworthy and unChristian claim, without evidence
    “This whole episode stinks of a money-grubbing grab; a blatant attempt by
    this woman to get aboard the gravy-train and sue the diocese for every
    penny she can screw out of it.”

    Her claim may or may not be true. Neither of us can know. The Court will do its best to weigh up the evidence. It may well dismiss her claim for lack of evidence.

    There is an unfortunate history of child abuse claims being attacked as money-grabbing. These attacks bring further scandal, discredit and shame on the Church, which has a distinctly tarnished reputation for how poorly it has dealt with child sex abuse over many decades.

    This woman will have had to convince her solicitor and barrister that she has at least a reasonable case to have got this far. Would you please show some charity and patience and wait until the Court hears the evidence for and against her claim, read its judgement and then decide what you think?

    The fact that the priest is dead may or may not help her claim. Neither you nor I know much about the claim details and so we are in no position to judge. The High Court will certainly take this into account.

    Equally her claim is disadvantaged because the events complained over were over three decades ago, when she was a child, and when she was in some way disabled or incapacitated (how is not yet clear). The Court will therefore have to treat her evidence with care.
    I would say it’s a matter of swings and roundabouts on this.

    And the diocese won’t pay, because it is all covered by insurance, as the Bishop has publicly made clear.

  • Nat_ons

    I liked this well reasoned and documented reason; the sources linked had also helped me to understand the oddity – and nicety – of English Law as applied. Yet a serious, and as yet untouched, problem strikes still at my rather muddle-headed mind – and that is the distinction between a Police Officer as one of Her Majesty’s Constables and say a Judge or Law Lord or Peer of the Realm in Parliament. All these are duly sworn in and invested officers of Her Majesty’s sovereign rule; however, while she, in name, is deemed responsible for the misdemeanors and lese-majeste of her lesser officers, the Crown is not vicariously liable for the crimes and failings of the nobles (even in public office).

    The Catholic priest is not a Police Officer, hired and fired, and thus under the rule of an employer. He is – as are we all in Christ – a sovereign priest in and of his own right, moral, legal and official – and therefore fully liable for his own actions (even if disciplinary actions can be taken against us, by the body to which we adhere e.g. excommunication). So, like the noble lord in the House of Lords, he is not an employee of his overseer any moreso than the lord is an employee of the Crown; the lord, as a felon, may be tried by his Peers, as a presbyter may be held to account by his presbyteral oversight, yet neither the Sovereign Lord, Her Majesty (to whom the peers owe their feudal loyalty as to a liege lord) nor the Lord Bishop (to whom the ordained minster pledges his good faith) can be held to account for any ministerial failing.

    Of course I may be wrong in setting out this now long past office of good faith, the feudal system, but maybe – just maybe – the judges in this case have sought to apply a corporate jurisdiction where a liege service is the actual basis .. and that, if I understand it, would open a can of intensely nasty worms for more than the allegiance of the papist priest to his Romish bishop.

    God bless, Nat.

  • Chris Morley

    Nat
    Thanks indeed for your appreciation of my explanation and the links I provided to back this up.

    I am not sure that I have entirely understood the question(s) you are asking and they are at least partly off topic to the facts of this case. Although I have considerable legal understanding and some direct legal representative experience (I trained and supervised advice workers at a busy city Citizens Advice Bureau for many years and represented people at County Court and at Benefits Tribunals), I am not a solicitor but an intelligent lay person. However I will try to answer your questions as best I can.

    You first ask about the distinction between police as office holders, and judges and peers in Parliament. In the case of the police, the Queen is not vicariously liable; it is the Chief Constable. It is a relic of a historical flummery (police as defenders of the Queen’s peace, enforcing the law in the Queen’s name etc) that police are nominally office holders under the Crown; they may swear such an oath to her name, but management and hiring and firing is in the hands of the Chief Constable.

    In relation to judges and peers in Parliament, they are each treated differently. Peers can be stripped of their title (exceptionally rare and I can’t recall the exact mechanism but search the web if you want to find out), or suspended from their place in the Lords (one is currently suspended for fiddling his expenses for which he also went to jail). You have to be a very, very naughty peer.
    But peers in the Lords are not ‘employed’ in the sense that a priest / CoE vicar is, and do not do a ‘job’ where they have the opportunities to harm a member of the public by neglect or abuse, which is what vicarious liability is designed to protect people against. You could imagine a hypothetical situation where a peer did sexually abuse a member of the public who came to them for assistance in the Lords, and if that happened an attempt might be made to bring a case against them in the High Court. Whether that would succeed will mean breaking fresh ground for the High Court on vicarious liability and I suspect it would be such a big legal leap for the Court that it could not possibly succeed. The principle difficulty I can see is that there is no-one in any sort of ‘employer’ role for peers.
    However, given that most peers have wealth and property it would make more sense to (1) complain to the police and get the peer prosecuted for the crime and ask the trial judge to make a civil compensation order at the same time as sentencing, to achieve the same end (compensation), or (2) sue them directly in person for damages for the consequential harm. If the peer hasn’t money or property, it would be one of those situations where there is no effective way to obtain compensation, a ‘gap’ in the system.
    I’m not sure how judges misbehaving in the course of their work are handled (it is all dealt with very discreetly and rarely reaches the press), but they can be and are stripped of their office. Even acts unconnected to their work (e.g. traffic offences) can see them removed – it brings the law into disrepute and lowers public trust in the whole judiciary when judges to break the law). Check the web for details.

    Your second para says a priest is not hired and fired like a police officer and thus is not under the rule of an employer. Instead you say he is an independent entity liable for his own actions and their consequences.

    Well here you have missed the point of the Court’s judgement and are wrong. The Court broke new legal ground and said the priest/Bishop relationship was sufficiently ‘akin’ to employee/employer as to allow a claim to be made for vicarious liability against the Bishop.

    The High Court accepted that a priest is an office holder (like a police officer) and as such the hiring and firing works differently to most ordinary jobs. But the substance of the High Court ruling (check my responses to other comments below, and read the judgment itself, also linked elsewhere) was that a priest’s role had enough of the relevant features of being an employee, that he can be said to be ‘akin’ to being an employee of the Bishop, and that is what is needed for the Bishop to be vicariously liable for a priest’s misbehaviour while ministering to the Christian flock.
    Your second sentence in that paragraph (beginning “So, like the noble lord in the House of Lords, he is not an employee …. “) is rather confusing and talking about archaic, non-modern practices, but seems essentially to be trying to make the same point. As I said above, you’ve missed what the High Court judgement means.

    In your final paragraph, you half answer your own question. There is no legal fuedal liege relationship remaining in any real sense. It patently hasn’t existed in England for RC priests since Henry VIII separated the Church in England from Rome. The Bishop’s barrister certainly didn’t attempt to advance such an argument so we can be very confident that it is dead. It will also be dead in the case of CoE clergy, but the High Court didn’t consider or rule specifically on any vicarious liability CoE Bishops may have for abuse by their clergy. I think there will now be vicarious liability of Bishops within the CoE, but it will need a specific High Court case to decide that. This is because the details of the relationship between CoE Bishops and their ministers is not precisely the same as for the RC Church.

    I’m disappointed to see your gratuitous swipe at ‘papist priest to his Romish bishop’. From some of my comments elsewhere you will see I am absolutely not an apologist for the Catholic Church’s abysmal neglect and failings on child sex abuse, but please join the rest of us in the 21st century and show others human respect and dignity. The accused priest is dead, the Bishop in this action wasn’t the Bishop at the time of the alleged abuse, and the High Court has not heard any of the evidence or made a decision. The reformation was hundreds of years ago and we now have dialogue between churches and diplomatic relations with Rome. I find the motto ‘Do as you would be done by’ a good behavioural guide.

  • Chris Morley

    Her claim may or may not be true. None of us can know. I accept that in this sinful world, there probably are some cases where individuals have attempted to make or even have succeeded with false claims.

    Without evidence, these comments suggest an intention to cast a nasty slur and make a personal attack on the good faith of this woman.

    Would you please point us to your source for claiming there were false claims in Ireland or Boston?
    For us to be able to trust these as trustworthy, the sources need to be independent (rather than the personal account of Gordon MacRae in Boston you have linked to, which may be self-serving from a man in denial).
    To really prove this charge can you please point us to documented cases showing false claimants were successfully prosecuted for fraud in both Ireland and Boston?

    Can you please provide statistics on the proportion of proven false claims to the total number of claims that were upheld, so that we may judge how likely it is that this woman’s claim is false?

    What is your evidence for suggesting that this particular woman’s claim is likely to be false?

    I’d remind you both that Jesus and the Church teach us not to judge others.

    The UK, Ireland and state of Massachusetts have legal systems, that may make occasional mistakes, but that take considerable care to weigh up the evidence for and against such claims. Our High Court may well dismiss her claim for
    lack of evidence. That wouldn’t mean it is necessarily false, just that there is not enough evidence, with sufficient corroboration and reliability, to be able to accept the claim as proved.

    There is a most unfortunate history of child
    abuse claims being attacked as money-grabbing. These attacks, when brought without evidence, bring
    further scandal, discredit and shame on the Church, which has a
    distinctly tarnished reputation for how poorly it has dealt with child
    sex abuse in many countries over many decades.
    Unjustified slurs on claims are part of a pattern of behaviour that seeks to distance the Church from its failings and neglect in care and protection of vulnerable young people that it has admitted and the Pope has apologised for in many countries. These attacks reopen the wounds of abuse and are particularly hurtful.

    This woman will have had to
    convince her solicitor and barrister that she has at least a reasonable
    case to have got this far.
    Would you please show some charity and
    patience and wait until the Court hears the evidence for and against her
    claim, read its judgement and then decide what you think?

  • Chris Morley

    Please note the person taking action in this case is female. This case is about girl child abuse, paedophilia.

    This case has NOTHING at all to do with homosexual activity.

    It also has absolutely nothing to do with sex with “young boys” that you say is mentioned in a 20+ year old The Nation article. Nowhere in that Nation article quotations does your phrase ‘young boys’ appear.
    You just made that up, based on your own assumptions. Much of the article you have linked to in First Things is instead about the film director Roman Polanski’s notoriety for having sex with a 14 year old girl, which is very much more relevant to the one we are discussing in this Catholic Herald article).

    I’m not defending in any way the novelist the article describes, who is a predatory sex tourist in Haiti.

    However for the avoidance of anyone’s doubts about your mistaken reference to ‘young boys’, the novelist is describing relationships with sex workers, and this indicates these male sex partners were all above the age of consent (some, for example, worked as servants, but were described in gay slang as “houseboys”).

    Remember that heterosexual men very often be-little women partners, and especially sex workers, by describing them as ‘girls’. That almost always means females of above legal age. Exactly the same thing occurs when some gay men talk about partners, who are of legal age, describing them as ‘boys’.

    Reprehensible, and demeaning, I agree, but the Nation article doesn’t necessarily refer to any paedophilia, sex with under-age males. It’s more likely they were above the age of consent.

    But remember this court case we are discussing is about a woman complaining that a priest raped and sexually abused her when she was a girl child, below the age of consent: and the court case does not concern homosexuality in any way.