The Free Church Of Scotland V. The General Assembly Of The Free Church Of Scotland
| Jurisdiction | Scotland |
| Judge | Lady Paton |
| Neutral Citation | [2005] CSOH 46 |
| Date | 24 March 2005 |
| Docket Number | A5138/01 |
| Court | Court of Session |
| Published date | 24 March 2005 |
| OUTER HOUSE, COURT OF SESSION [2005] CSOH 46 | |
| A5138/01
| OPINION OF LADY PATON in the cause THE GENERAL ASSEMBLY OF THE ASSOCIATION OR BODY OF CHRISTIANS known as THE FREE CHURCH OF SCOTLAND and for administrative purposes only as THE FREE CHURCH OF SCOTLAND (CONTINUING) and OTHERS Pursuers; against THE GENERAL ASSEMBLY OF THE FREE CHURCH OF SCOTLAND and OTHERS Defenders: ________________ |
Pursuers: J. W. McNeill, Q.C., Parratt, Dawson; Drummond Miller W.S.
Defenders: Wright, Q.C., Charteris; Simpson & Marwick W.S.
24 March 2005
[1]This case concerns a dispute between two groups, each claiming to be the true Free Church of Scotland. At issue are assets held in trust "for behoof of and in connection with the association or body of Christians known as the Free Church of Scotland". The assets comprise pension funds, shareholdings, and buildings such as office properties and the Free Church of Scotland College in Edinburgh, but not churches and manses held by congregational trustees.
The Free Church of Scotland: 1843 to the late 20th century
[2]The Free Church of Scotland came into existence in 1843, when certain ministers and members of the Church of Scotland objected to state interference in their worship. A group separated from the Church of Scotland. They left behind churches, manses, and other assets. They made public appeals for financial support. Dr. Chalmers, their moderator, was a particularly active fund-raiser. His address, known as Dr. Chalmers' Affectionate Representation, was adopted by the General Assembly, and became one of the acknowledged authoritative sources of definition of the fundamental tenets of the Free Church.
[3]The appeals to the public produced substantial funds. Funds and property belonging to the Free Church were held by general trustees for behoof of and in connection with the association or body of Christians known as the Free Church of Scotland.
[4]In the second half of the nineteenth century, certain voluntary churches in Scotland moved towards unification with other churches. The United Presbyterian Church of Scotland was considering unifying with the Free Church. A minority of the Free Church, including the convenor Dr. Begg, could not accept the doctrinal compromises involved. As early as 1863, Dr. Begg expressed concerns that the proposed union would result in a departure from the fundamental tenets of the Free Church such that the body would no longer truly be the Free Church. In the view of Dr. Begg and the minority, the proposed union was unconstitutional.
[5]Years of dispute and disagreement followed. A Free Church Defence Association (FCDA) was set up to protect the fundamental tenets of the Free Church. No disciplinary action was taken against Dr. Begg or the FCDA.
[6]In 1883, Dr. Begg also protested against the introduction of instrumental music. He was permitted to do so without being considered in breach of his ordination vows.
[7]In 1900, the majority of the Free Church finally unified with the United Presbyterian Church, becoming the "United Free Church". The minority refused to participate. Instead, they commenced an action in the Court of Session seeking to have the property and assets of the Free Church transferred to them as adherents of the true Free Church. In the House of Lords in Bannatyne v Overtoun [1904] A.C. 515, the minority were vindicated. Their Lordships identified fundamental tenets of the Free Church from which the majority had departed, including the doctrine of predestination and the Establishment Principle (concerning the right and duty of the state to establish and maintain the Christian Faith). The minority were found to be the true Free Church, and were awarded all the assets.
[8]Those assets were however disproportionately great for the number of members of the true Free Church. Accordingly the state intervened. By the Churches (Scotland) Act 1905, a commission was set up to redistribute the assets as appropriate.
The present troubles
[9]In about 1989, complaints emerged about the conduct of a professor working in the Free Church of Scotland College in Edinburgh. The professor was an ordained minister, but not in charge of a ministry. He was engaged in educating and preparing students for the ministry. The complaints concerned alleged sexual misconduct towards women.
[10]A formal report was made to the Training of the Ministry Committee of the Free Church (the TOM committee). That committee consisted of a number of members of the church, with certain duties and responsibilities in respect of the college staff. In particular, as paragraphs 2.11 and 2.12 of the Practice of the Free Church of Scotland (8th ed.) page 107 explain:
"2.11 Process against a Professor: Act IX, 1861 lays upon the General Assembly's Training of the Ministry Committee the special function of originating and prosecuting before the Church Courts any process required against a Professor in the Church's College for heresy or immorality. The rights competent to all parties according to the law of the Church are at the same time reserved. This lays upon the Training of the Ministry Committee the duty of precognition and preliminary investigation prior to any decision respecting the presentation of a Libel to the relevant Presbytery.
2.12 Preliminary Examination: In all cases which may lead to a Libel, a careful preliminary examination of proposed witnesses is requisite by the party prosecuting in order that a charge incapable of proof may not be proceeded with ..."
[11]The TOM committee's initial role was rather similar to that of a procurator-fiscal or an advocate depute having to assess whether there should be a prosecution. If a libel was to be drawn up against the professor, the committee would also have the responsibility of conducting the case against him (whereas in cases not involving college staff, the relevant presbytery conducted the case). The committee therefore carried a heavy responsibility. That responsibility was all the greater, as the professor in question was an ordained minister, and paragraph 2.10(1) of the Practice of the Free Church of Scotland provides:
"Since a scandal against a minister, once raised, cannot be easily wiped off, a presbytery must exactly ponder by whose information and complaint it comes before them. And in judging the probability that would justify them in proceeding, they are called upon to weigh well the measure of credit due to the quarter from which an allegation of scandal proceeds ..."
[12]The TOM committee duly investigated the complaints. In 1990, they concluded that that there was insufficient evidence to support the allegations.
[13]Further complaints emerged. In 1993, the TOM committee appointed a sub-committee to interview witnesses. Statements were taken. Letters and affidavits were studied. The sub-committee then reported on the evidence, and recommended that a libel against the professor be drawn up. In December 1993, the TOM committee rejected the sub-committee's proposal. The committee decided, by majority vote, that insufficient evidence had been found capable of proving in the courts of the church censurable conduct on the part of the professor.
[14]When the General Assembly met in May 1994, the TOM committee presented a supplementary report containing their decision that there was insufficient evidence. The minority of the TOM committee also presented a minority report, requesting that the evidence be submitted to the church's law agent, and the clerk of assembly, for advice. The General Assembly agreed to that request. The TOM committee were directed to review their decision in the light of that advice.
[15]The law agent and the clerk considered matters, and agreed with the TOM committee that there was insufficient evidence. Meantime however, three new complainants had come forward. The TOM committee appointed a sub-committee to interview them. Having considered the report of the sub-committee, together with the advice of the law agent and the clerk, the TOM committee decided to adhere to their original decision.
[16]Accordingly, at the General Assembly in May 1995, the TOM committee again reported that insufficient evidence had been found capable of proving in the courts of the church censurable conduct on the part of the professor. The minority of the committee appealed against that finding. The General Assembly by majority vote rejected the appeal, upheld the committee's finding, directed that the matter was closed, and stated that anyone seeking to pursue the matter further did so at risk of being censured as a slanderer. A dissent to that decision was recorded by twenty-seven commissioners and by the minority of the TOM committee. The dissent stated that the matter had been closed without basic evidence having been examined, and without basic presbyterial procedures whereby a fama clamosa (widespread rumour) could be quietened, and the innocence of the innocent established.
[17]In 1996, in a trial in Edinburgh sheriff court, the professor was acquitted of criminal charges relating to some of the allegations of sexual misconduct. Other allegations of sexual misconduct not amounting to criminal behaviour had not formed part of that trial.
[18]In 1997, a minority of the TOM committee presented a report to the General Assembly, requesting the constituting of a special committee to exercise the functions of the TOM committee in relation to a booklet concerning the professor "and his opponents". The General Assembly rejected the request as being contrary to church practice, and in particular contrary to the Act of 1861. The Assembly also found those who had presented the report to be in contempt in respect that they had raised matters declared to be closed in 1995.
[19]Some ministers and members of the Free Church of Scotland remained dissatisfied with the investigation into the allegations. They considered that the nature of the allegations, and the identity of the person...
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