High Court of Justice, Crown Office List: Latham J, October 1998
The applicant had been found guilty in the Provincial Court of the Church in Wales of three charges of misconduct. The Provincial Court had refused him leave to appeal against the findings to the Supreme Court. The applicant sought judicial review of the initial decision of the Provincial Court and its refusal of leave to appeal. Dismissing the application, Latham J concluded that the Divisional Court had no jurisdiction to entertain the proceedings. Whilst accepting that the consistory courts of the Church of England were amenable to judicial review, he regarded the analogy as inapposite since it failed to have regard to the effects of the disestablishment of the Church in Wales as a result of the passing of the Welsh Church Act 1914. Accepting the analysis of Sedley J in R v Dean and Chapter ofSt Paul's Cathedral and the Church in Wales, ex pane Williamson (1998) 5 Ecc LJ 129, he stated 'that the Church in Wales is a body whose legal authority arises from consensual submission to its jurisdiction, with no statutory or (de facto or de jure) governmental function. It is analogous to other religious bodies which are not established as part of the State.' He cited R v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, ex pane Wachmann [1993] 2 All ER 249, [1992] 1 WLR 1306; R x London Beth Din, ex pane Bloom (1998) COD 131; and R v Imam of Bury Park Jame Masjid, Luton, exparte Sulaiman /1//(1994) COD 142. As to the possibility of a private law claim, Latham J rejected each of the grounds of unfairness advanced by the applicant. He considered the Provincial Court correct to adopt the civil standard of proof as discussed by Lord Nicholls in Re H[\996] AC 563, [1996] 1 All ER 1, HL. He did not regard the penalty, namely a recommendation that the applicant be deposed from holy orders, as perverse or disproportionate. In any event the applicant had not exhausted the remedies available to him in the Church in Wales, since his appeal against deposition to the Provincial Synod of Bishops was still outstanding. Finally, there could be no breach of natural justice or of article 6(1) of the European Convention on Human Rights in the bishop effectively acting as prosecutor and sentencer. At ordination and by subsequent ministry the applicant had consented to the procedures set out in the Constitution of the Church in Wales and there could be no real risk of bias when the bishop took no part in the decision as to guilt and was precluded from imposing any greater sanction than that recommended by the court. This situation was wholly different from a court martial whose procedures had been the subject of criticism by the European Court of Human Rights in Findlay x United Kingdom 24 EHRR 221.
(1999) 5 Ecc LJ 217-218
