Chapter 4 - To ensure that the principles of justice are fully respected

The Report

A Review of the Current Safeguarding Policies, Procedures and Practice within the Catholic Church in Scotland

The McLellan Commission published its Report on 18th August and has made eight key recommendations to Scotland's Catholic Bishops to improve the current standards of safeguarding within the Catholic Church.

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Chapter 4 - To ensure that the principles of justice are fully respected

Justice

4.1 To maintain public confidence in the Safeguarding arrangements in the Catholic Church in Scotland, it is important that justice is not only done, but is seen to be done. Justice is important because survivors of abuse want justice for themselves and others, and people accused of abuse need to be treated justly when an allegation is made. Both survivors and individuals accused of abuse are entitled to the full protection of the law. Nothing must be done by the Catholic Church which would deny any person the full protection of the law, just as nothing must be done by the Catholic Church which would protect any person from the penalties of breaking the law. Pope Benedict was responding to victims and survivors of abuse when he declared that the Church must “ensure that the principles of justice are fully respected”.

4.2 There are many definitions of justice, and these definitions can become very complex and technical. For the purpose of this report, however, justice can be equated with those involved in reporting abuse being treated fairly and being fully heard before any decisions are made; being properly supported through any investigation or proceedings, with access to appropriate advocacy and advice; being properly informed of the outcome and being helped to deal with any consequences. This should apply to any criminal proceedings, civil proceedings and/or proceedings subject to canon law in which a child or vulnerable adult, who is a survivor of abuse, has an interest.

4.3 The report has already highlighted some of the fundamental requirements of justice, and more are identified in Chapter 5, particularly in relation to the experience of survivors. It is beyond the remit of this report, and probably impractical as well, to examine all of the issues which might arise (and may well have arisen) in proceedings involving an individual making an allegation of abuse against a member of the Church. However, it is necessary to consider some issues which require to be addressed by the Catholic Church.

4.4 Allegations of abuse against members of the clergy require to be responded to in accordance with the canon law of the Church, in addition to the civil and criminal law of Scotland and any statutes in force which are relevant to the care and protection of children or vulnerable adults who have suffered abuse or are at risk of suffering abuse. While the civil rights of children and vulnerable adults in Scotland are not identical, those within both groups who have been abused or have been threatened with abuse have similar protection under the criminal law of Scotland, the civil law of Scotland and the statutory frameworks of child and adult protection. The Catholic Church in Scotland should ensure that its internal systems of child and adult protection continue to reflect the best practice guidance within the public sphere.

4.5 A key issue is reconciling the different standards of proof required in different types of proceedings. Under the law of Scotland, in criminal trials the burden of proof rests on the prosecutor (the procurator fiscal in the sheriff court and the Advocate Depute in the High Court of Justiciary), and the standard of proof that requires to be met is “proof beyond reasonable doubt”. Normally a verdict of guilty can only be returned by the judge (or in a jury trial by the jury) if the court has heard evidence from two or more witnesses from which it can be concluded, beyond reasonable doubt, that the accused committed the crime of which he is charged. And the court has reached such a conclusion.

4.6 On the other hand, civil courts and tribunals in Scotland operate to a lesser standard of proof when they are making decisions in civil or professional proceedings (including disciplinary proceedings). This includes when they are making decisions in relation to child protection or dealing with disciplinary matters. In such situations, decisions are reached on the basis of the “balance of probabilities”, ie that something is more likely to have happened than not. This means that action can be taken to protect a child from a person who poses a threat to the child, even if that person has never been charged or found guilty “beyond reasonable doubt”. This correctly prioritises protection. However, it remains unclear to the Commission whether proceedings subject to canon law adopt a standard of proof which is similar to the “balance of probabilities”.

4.7 As the Commission understands, when a priest or other member of the Catholic Church is accused of sexual abuse and becomes the subject of proceedings initiated by the Church and subject to canon law, a standard of proof known as “moral certainty” is the measure against which the accusation of abuse is determined. This appears to be a high standard appropriate for a penal procedure. It is not clear to the Commission that there is a consistent standard equivalent to the Scottish “balance of probabilities” that applies to proceedings brought against professionals such as teachers, social workers or doctors, where the focus is on the need to protect children. It would be worrying if the canon law standard made it harder to take disciplinary action against a priest than would apply to these other groups. The protection of children and other vulnerable groups has to be the primary consideration.

4.8 For the avoidance of doubt, the Catholic Church in Scotland should take legal advice as to the standards of proof applicable to internal disciplinary processes, outwith the formal criminal justice system, when they are dealing with cases involving a member of the clergy of the Catholic Church in Scotland, who is alleged to have abused a child or vulnerable adult.

4.9 Associated with this is the issue of cover-up or other action that might seek to protect the institution of the Church or priests before seeking to protect the needs of the abused. This report has noted that survivors often feel excluded from the process of the investigation of their complaints. They are not always told what the process entails, nor properly informed of what decisions are taken subsequently in relation to the person against whom an allegation has been made. Without compromising any formal criminal or disciplinary processes, every effort should be made by the Church, in conjunction with the Police and Public Protection Agencies, to keep victims and survivors informed of progress and action. Otherwise the sense of exclusion could potentially undermine the provision of justice for children and vulnerable adults, and reinforce their perceptions of a power imbalance.

4.10 Another obstacle to ensuring justice in the Catholic Church is the lack of a transparent process for responding to allegations against priests and other clerics. Again, this has been discussed elsewhere in this report, and it disadvantages both the accuser and the accused.

4.11 There are also difficulties in managing the reputational damage to the Church and the individual when an accused cleric is removed following an allegation and pending an investigation. Both catholic tradition and canon law place great emphasis on the importance of avoiding rash judgements that impugn the reputation of others (for example Canon 1717 which sets out the procedures for an investigation into alleged wrongdoing). However, for justice to be fully respected, there needs to be education of priests and parishioners about the necessity for “precautionary” removal from ministry during an investigation which must not be assumed to imply blame. This will always be uncomfortable and will be a difficult experience for an accused person who has done no wrong.

4.12 In overall terms, it is important to stress that there is more than one type of inquiry and determination to be made when a survivor advances an allegation of abuse. There may, correctly, be both criminal and disciplinary investigations. Therefore, the good practice guidance is to ensure that more than one person is involved in responding to an allegation and that the same person should not deal with both the survivor and any cleric or employee facing a disciplinary charge.

4.13 For justice to be fully respected, the Church should include in “Awareness and Safety” clear instructions about the processes to be followed when an allegation is made about an individual, and about the responsibility of the Bishop or Religious Superior.

4.14 Finally, for justice to be fully respected, the Church should introduce formal processes, underpinned by canon law, for addressing the protection of children: not just from those convicted “beyond reasonable doubt” of abuse, but also from those against whom there is sufficient evidence “on the balance of probabilities” to sustain an allegation of inappropriate or unacceptable behavior. Judgements on this lower standard should be principled, transparent and open to challenge. If the Catholic Church cannot do this within the current framework of canon law, it needs to pursue ways of amending this.

Advocacy

4.15 One question the Commission asked every survivor was:

When you contacted the Catholic Church, and a meeting was arranged, were you told you could bring someone with you?

4.16 Very few said “yes”. Yet several respondents indicated that they would have been unable to come forward to the Commission without the help and support of family members or good friends (ML7, ML11, ML15, ML19, ML21). It is evident that meeting the Catholic Church in such circumstances is likely to be more frightening than meeting members of the Commission. Our experience was that some survivors were provided with exceptional support by a partner, family member or friend. This support was remarkable in helping a survivor to survive, sometimes over many years and remarkable in helping a survivor cope with the stress of talking to the Commission.

4.17 Every case and each individual is different. Some survivors will prefer to give their accounts alone. They may have kept the whole business secret from those closest to them; they may have kept some details secret; they may feel they have let down those who love them; they may be ashamed. Other survivors may feel that the presence and help of one who can be trusted gives the courage to proceed. The presence of a trusted person may also be vital when the survivor is overcome with pain in telling of the experience.

4.18 Having someone present who is clearly on the side of the survivor may be an important source of strength. They may also be an extra pair of ears. Just as some people like to see a doctor alone, others, especially if the matter being discussed is serious, want another person present to listen to what is being said to make sure that nothing is forgotten afterwards. It would be unsurprising if a survivor, so distressed in the course of a meeting about abuse with representatives of the Catholic Church, is not to be able to remember all that was said.

4.19 It is therefore in the interests of survivors that they are encouraged to bring a companion when meeting Church representatives to talk about their experiences and what is to be done. Not all may take up the invitation, but the invitation should always be made.

4.20 The freedom to be accompanied is not only a matter of compassion and fairness it is also about justice. For justice to be done, every step must be taken to ensure that the experience of the survivor is told as clearly as possible. Not all survivors will be able to do that by themselves. A consequence of abuse can often be the inability to speak about it. In all situations, access to an advocacy service is important and should be offered as a matter of course.

4.21 This is likely to be particularly true where children are involved. It is unreasonable to expect a child to be able to say all that needs to be said. Fear, shame, inexperience of sexual behaviour, being in the presence of unknown adults, respect for those in authority – any or all of these may weigh heavily on a child. So it is essential that there is someone present during any proceedings who can speak on behalf of the child and help the child to speak. Sometimes that person will be a parent or relative, but they may not know the facts, or may not believe the child, or they may be ashamed. Therefore, access to an advocacy service is important.

4.22 Advocacy services in Scotland have grown significantly in recent years, particularly as voices for older people and children. A vital aspect of all advocacy services is their independence, so it would be inappropriate for the Catholic Church to establish its own advocacy service. Rather, it should develop a partnership with organisations in Scotland which provide these services. This is the same model which the Church is already developing with regard to counselling services.

4.23 The Scottish Independent Advocacy Alliance says this of independent advocacy:

It safeguards peoples’ rights. Independent advocacy aims to help people by supporting them to express their own needs and make their own informed decisions. It safeguards people who are vulnerable (Scottish Independent Advocacy website).

4.24 The use of an advocacy service cannot be entered into lightly. There are costs involved, but there may be higher costs beyond financial implications if people are not assisted in expressing their own needs and making their own informed decisions and if people who are vulnerable are not safeguarded.

Whistleblowing

4.25 Whistleblowing was raised with the Commission from at least two sources. Among the parishes we visited there was strong support for the protection of whistleblowers as a component of best practice in safeguarding. Also, some priests told us they believed that they had suffered as a result of making complaints about the behaviour of other priests. They believed that they would be further discriminated against if it were known that they had spoken to the Commission, despite the clear assurances of the Bishops’ Conference that none would be disadvantaged as a result of meeting the Commission.

4.26 The private sector and the business world have started to learn the importance of a fair policy to protect whistleblowers. A policy, which protects whistleblowing done in good faith, can prevent damage and enhance the reputation of the institution. So it would be a brave and wise step for the Catholic Church in Scotland to adopt such a policy with regard to safeguarding. Brave because it would be a protection against further abuse, and wise because it would considerably increase the Church’s reputation for openness. Both for building a safer Church and for building a more credible Church in regard to safeguarding, a policy for the protection of whistleblowers should be adopted immediately.

4.27 Such a policy for safeguarding whistleblowers would give confidence to employees and volunteers to report malpractice without fear. Indeed it would make it a duty to do so. Such a policy would state clearly that employees who raise concerns reasonably and responsibly will not be penalised nor suffer a detriment in any way. It would include protection for those who raise concerns about a superior. The policy would apply not only to employees, but to all holders of offices and volunteers within the Church. While they would not fear disciplinary action in employment terms, they might well fear harassment and victimisation and must be protected. It should set out clearly the procedures to be followed in the event of a concern being raised.

4.28 There is an opportunity here for the Catholic Church in Scotland to become an example of good practice. In February 2015, Sir Robert Francis published his review of whistleblowing in the NHS (“Freedom to speak up”). He said:

“I’ve heard some frankly shocking stories about [staff] whose health has suffered, and in rare cases who’ve felt suicidal as a result of their perception of them being ignored or worse”.

4.29 He called for a complete change of culture in the NHS. The Catholic Church in Scotland has said repeatedly that it is determined to change from a culture of secrecy to a culture of openness. Openness to the protection of whistleblowers would be a positive step forward.

4.30 Sir Robert Francis also made it clear that it was not enough to have good whistleblowing policies in the NHS. What mattered was that the policies were put into practice. They must be monitored. Like so much else in this report, it is not only having the right policies which matters, it is also using these policies to do the right thing.

Recommendations for Chapter 4

4.31 The Catholic Church in Scotland should ensure that its internal systems of child and adult protection continue to reflect the best practice guidance within the public sphere (paragraph 4.4).

4.32 For the avoidance of doubt, the Catholic Church in Scotland should take legal advice as to the standards of proof applicable to internal disciplinary processes, outwith the formal criminal justice system, when they are dealing with cases involving a member of the clergy of the Catholic Church in Scotland who is alleged to have abused a child or vulnerable adult (paragraph 4.8).

4.33 Without compromising any formal criminal or disciplinary processes, every effort should be made by the Church, in conjunction with the Police and Public Protection Agencies, to keep victims and survivors informed of progress and action (paragraph 4.9).

4.34 There needs to be education of priests and parishioners about the necessity for “precautionary” removal from ministry during an investigation, which must not be assumed to imply blame (paragraph 4.11).

4.35 More than one person should be involved in responding to an allegation, and the same person should not deal with both the survivor and any cleric or employee facing a disciplinary charge (paragraph 4.12).

4.36 The Church should introduce formal processes, underpinned by canon law, for addressing the protection of children: not just from those convicted “beyond reasonable doubt” of abuse, but also from those against whom there is sufficient evidence “on the balance of probabilities” to sustain an allegation of inappropriate or unacceptable behaviour (paragraph 4.14).

4.37 Survivors should always be encouraged to bring a companion when meeting Church representatives to talk about their experiences and what is to be done. This invitation should always be made (paragraph 4.19).

4.38 Every step must be taken to ensure that the experience of the survivor is told as clearly as possible. In all situations, particularly in relation to children, access to an advocacy service is important and should be offered as a matter of course (paragraphs 4.20 and 4.21).

4.39 The Catholic Church should develop a partnership with organisations in Scotland which provide advocacy services. This will ensure independence of these services (paragraph 4.22).

4.40 The Church should adopt a whistleblowing policy in relation to safeguarding. This policy should apply not only to employees, but to all holders of offices and volunteers within the Church and should be monitored (paragraphs 4.26, 4.27 and 4.30).

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