Consistory court

Consistory courts have been in existence in England since shortly after the Norman conquest and their jurisdiction and operation was essentially unaffected by the English reformations.[1] Originally, the jurisdiction of consistory courts was very wide indeed and covered such matters as defamation, probate, and matrimonial causes as well as a general jurisdiction over both clergy and laity in relation to matters relating to church discipline and to morality more generally and to the use and control of consecrated church property within the diocese.[1] The judge of the consistory court, appointed by the bishop, was the bishop's official principal and vicar-general of the diocese and became known in his judicial capacity by the title "chancellor".[2]

Appeals lay from the consistory court to the provincial court of the archbishop. In the province of Canterbury, the archbishop's court was known as the Court of Arches and was presided over by the archbishop's official principal, known as the dean of the Arches. In the province of York, appeals lay to the Chancery Court of York presided over by the archbishop of York's official principal, the auditor. Until 1532 further appeal lay to Rome; thereafter further appeal was to the Crown.[3]

By the end of the eighteenth century, the exercise of jurisdiction over the laity in moral matters had fallen into desuetude.[4] But there was no reform of the jurisdiction of the ecclesiastical courts until the middle of the nineteenth century.[5] In 1855 the defamation jurisdiction of the ecclesiastical court was brought to an end[6] and in 1857 the probate jurisdiction was transferred to the newly created Court of Probate[7] and the matrimonial jurisdiction to the newly created Divorce Court.[8] Both of these new courts were temporal rather than ecclesiastical courts; but their procedure continued (as it continues to this day) to reflect the ecclesiastical origins of the jurisdiction with, for example, matrimonial proceedings being by way of petition and the "citation" of parties in probate proceedings.[9] A major part of the jurisdiction left to the ecclesiastical courts was that which concerned the control of consecrated ecclesiastical property – essentially churches and their churchyards and certain other consecrated places such as municipal burial grounds. The other major aspect of their jurisdiction which remained was their criminal jurisdiction in relation to the clergy – i.e. their jurisdiction to deal with allegations of ecclesiastical offences against the clergy (for example for immoral conduct, neglect of duty or in relation to doctrinal or ceremonial matters). Their corrective jurisdiction over clergy was abrogated by the Church Discipline Act 1840. However, by the Clergy Discipline Act 1892, a clergyman may be prosecuted and tried in a consistory court for immoral acts or conduct. Under this act, either party may appeal to a secular court or the monarch in Council.[10]

Following a report in 1954 from the Archbishops’ Commission on Ecclesiastical Courts,[11] the ecclesiastical courts were put on a statutory footing by the Ecclesiastical Jurisdiction Measure 1963.[lower-alpha 1] The jurisdiction of the consistory courts was not much altered by the 1963 Measure save that criminal jurisdiction over the clergy where the case involved a question of doctrine, ritual or ceremonial was transferred to a new court called the Court of Ecclesiastical Causes Reserved (which continues to have that role).

A further reform took place more recently when the Clergy Discipline Measure 2003 transferred the criminal jurisdiction over the clergy (other than in relation to matters of doctrine, ritual or ceremonial) to new "bishop's tribunals" with modern tribunal procedure and a revised scheme of statutory penalties.

Each Consistory court is presided over by a single judge who is styled the Chancellor of the Diocese (or in Canterbury the Commissary-General).

The chancellor is appointed by the bishop of the diocese by letters patent following consultation with the Lord Chancellor and the Dean of the Arches and Auditor.

Ecclesiastical jurisdiction in the diocese, both contentious and voluntary, is committed to the Chancellor under two separate offices, those of official principal and vicar-general: the distinction between the two offices is that the official principal usually exercises contentious jurisdiction and the vicar-general voluntary jurisdiction.[10]

A person is eligible for appointment as chancellor only if the person holds or has held high judicial office, holds or has held the office of circuit judge, or has the qualifications required for holding the office of circuit judge.[25] A lay person must be a communicant of the Church of England to be eligible.[25] The chancellor takes the judicial oath, the oath of allegiance[25] and, if a lay person, makes the Declaration of Assent required by Canon G 2 of the Canons of the Church of England. The chancellor may be removed by the bishop only if the Upper House of the Convocation of the province resolves that he is incapable of acting or unfit to act.[25]

Chancellors are addressed on the bench as "Worshipful Sir" or "Sir" and are styled "The Worshipful".

When sitting, chancellors wear the same black silk gown that was formerly worn by judges in the Chancery Division of the High Court and by certain other judges, with a short wig, collar and bands.[26] On ceremonial occasions chancellors wear a full-bottomed wig and the silk gown is worn over a court coat, court waistcoat with lace jabot and knee breaches, silk stockings and patent leather pumps with buckles.

The consistory court itself is styled "this venerable court". Most have a mace, carried by the apparitor, who is usually a member of the staff of the diocesan registry and who was historically the official who served the processes of the court and caused defendants to appear by summons.

There may also be a deputy chancellor who may exercise the court's jurisdiction in the same way as the chancellor. In order to be appointed a deputy chancellor a person must have the qualifications required to be appointed a chancellor.[27]

The procedure to be followed by the court and by parties in faculty proceedings are set out in the Faculty Jurisdiction Rules 2015.[28]

The consistory court usually sits "on paper" without formal hearings. Contentious cases can be determined on consideration of written representations if the chancellor considers it expedient and all the parties agree.

When hearings are required they can be held in any convenient building; which might be the church to which the proceedings relate or an existing court building or a school or community hall made available for the purpose. Historically some consistory courts were housed in the cathedral church of the diocese and some cathedrals still contain court rooms, although these are now used for other purposes. For example, the former consistory court at St Paul's Cathedral is now the Chapel of the Order of St. Michael and St. George.[29] One of the oldest surviving complete ecclesiastical courtrooms in Great Britain is the consistory court at Chester Cathedral.[30] Probably the oldest known example (1617) is in the Chapel of St Nicholas, King's Lynn, Norfolk.

Until the latter part of the nineteenth century there were legal practitioners in England known as "advocates" who practised solely in ecclesiastical and admiralty law and formed a chartered institution called Doctors' Commons. After the transfer of much of the jurisdiction of the ecclesiastical courts to new, temporal courts in the 1850s, Doctors’ Commons declined and was eventually closed. Thereafter, counsel (i.e. barristers) were permitted to appear in the ecclesiastical courts and nowadays solicitors also appear. The only limitation that exists in relation to representation is the issue of funding. Where commercial interests are involved in contested faculty proceedings (e.g. a petition to allow the grant of a way leave to a utility undertaker) legal representation is usually engaged by the petitioners. Where the petitioners are private individuals or parochial church councils they may not have the resources to instruct solicitors and counsel; though it is not uncommon for counsel to appear pro bono.

The registrar of the diocese is also the registrar of the consistory court.[31] The qualification for appointment as a registrar is a general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990.[32][lower-alpha 4] He was usually also the legal secretary to the bishop, and now must be a legal adviser, and is registrar to the archdeacons. He must be learned in ecclesiastical law, and be a communicant of the Church of England. He is appointed by the bishop after consultation with the Bishop's Council and the Standing Committee of Diocesan Synod.[31]

There may be a deputy registrar who carries out some of the work of the registrar. There may be a separate clerk of the court, if there might be a conflict of interest for the registrar to act in this capacity.[33]

Each consistory court has a seal, which is in the care of the registrar.[34]

Consistory courts no longer have criminal (i.e. disciplinary) jurisdiction over the clergy.[35]

The machinery under which the clergy formally could be disciplined in a consistory court was contained in the Ecclesiastical Jurisdiction Measure 1963. Courts were convened on only three occasions under that legislation.[36] The last discipline case to be heard by a consistory court was that of Brandon Jackson, the Dean of Lincoln, who was acquitted of sexual misconduct in 1995.[37] A number of disciplinary cases have subsequently been heard by the new bishops' disciplinary tribunals established by the Clergy Discipline Measure 2003.

An appeal generally lies from the consistory court of a diocese to the Court of Arches or the Chancery Court of York, depending on whether the diocese is in the Province of Canterbury or the Province of York. Permission to appeal is needed, either from the consistory court or from the appeal court. However, if the appeal to any extent relates to a matter involving doctrine, ritual or ceremonial then the appeal lies instead to the Court of Ecclesiastical Causes Reserved and permission to appeal is not needed.[38] For determining the court to which an appeal lies, on the application of a party to the proceedings in the consistory court the chancellor must give a certificate stating whether or not the proposed appeal relates to any extent to a matter involving doctrine, ritual or ceremonial. The chancellor must also, if the appeal lies to the Court of Arches or the Chancery Court of York, decide whether to give permission to appeal.[39]

In faculty cases, a further appeal lies from the Court of Arches or the Chancery Court of York to the Judicial Committee of the Privy Council but only with the permission of the Judicial Committee.[40] A decision of the Court of Ecclesiastical Causes Reserved can be appealed from by presenting a petition to the Clerk of the Crown in Chancery that His Majesty appoint a Commission of Review.[41]