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This is a report of the recent trial in February, 2009, of the Bishop of Durham. It has been prepared by the Ecclesiastical Law Institute with as little emphasis as possible on jargon or legal niceties [1].

The Bishop of Durham came to trial in York recently after a long preliminary process. The law under which he was prosecuted was the Clergy Discipline Measure passed by General Synod in 2006. At the vote, the Measure was passed as follows: House of Bishops, 32-8; House of Laity, 176-44; and the House of Clergy, 120-85.

The part of the Measure under which the prosecution was brought related to an act "professing, advocating or promoting" a belief incompatible with the teaching of the Church of England. It was alleged that the Bishop had publicly communicated such a belief in his book Resurrection for Today (SPCK, 2006).

The Church of England is, of course, established. That is, certain of its affairs are regulated by Parliament.

As has been widely reported, the Bishop was found guilty by a Disciplinary Tribunal and prohibited for life from exercising his episcopal or priestly ministry. The verdict and sentence have gone on appeal to an Ecclesiastical Court and are likely to be heard early next year (2010). Meanwhile, the Bishop remains suspended from duty.

The essence of the charge was that the Bishop had denied the historicity of the resurrection of Jesus. While the arguments in court ranged widely through the Bishop's book, they centred mainly on the following paragraph:

This is the point at which we must declare that the resurrection of Jesus lies beyond strict historical proof. Historians will always find new ways of proposing how early Christian belief about the resurrection arose, and how it took the shape it did. It is nevertheless true, I firmly believe, that we don't know as a matter of good history that Jesus did rise from death. Each of us is called to profess the belief that Jesus is alive. But we can't prove it to anyone, whatever we find in the New Testament (p.680).

This, said the prosecution, was incontrovertible evidence that the Bishop had promoted a heretical teaching. It met all the criteria of the Measure for misconduct in accordance with the law [2]. By divorcing the doctrine of the resurrection from its anchor in an historical event, the Bishop had undermined it. In fact, he had redefined it to mean something else.

The court should be reminded, said the prosecution, that in the last analysis right Christian doctrine is in the hands of the bishops of the Church. In line with this, a statement by the House of Bishops to the General Synod in 1986 had been entitled The Nature of Christian Belief. Their stand was that

... we believe that Jesus' Resurrection was something that happened, regardless of observers, narrators or believers. Jesus truly died and was buried, and as truly rose again to eternal life.

It was impossible, said the prosecution, to interpret this as anything else but the affirmation of an historical resurrection in the same sense that the Battle of Trafalgar was something which actually happened.

The defendant in turn held that the charge was in error because it rested upon a literal reading of the New Testament. If anything was to be said about scholarship over the past three centuries, it was that such a reading is not tenable. Nor is it tenable that truth is guaranteed by the scriptures because they have been endorsed and handed on by God-granted authorities of the Church. It is impossible to hold or commend this position if advances in modern thought since at least the middle of the 17th century are taken seriously.

Good law always requires that an offence be related to criteria which are as clear and comprehensive as possible. So, for example, a law under which citizens can be prosecuted for "terrorism" has to spell out what is meant by that word. If this were not the case, it might be possible for a government to imprison people without just cause. In other words, it is not right for a court to try an offence by deciding what that offence means after the charge has been laid.

Getting a clear definition of beliefs incompatible with the doctrine of the Church of England did not prove easy for the court. A Working Group set up by the House of Bishops in 1999 had pointed out that "common law is by no means clear" and that "there is little recent case law to indicate how a court might interpret" misconduct today [3]. 

Both common law and precedent carry considerable weight in a court. In the event, the Working Group decided that Section 5 of the Worship and Doctrine Measure of 1975 was the correct reference point to refer to for the criteria they needed. Briefly, these criteria are:

1. The Thirty-Nine Articles, appended in 1571 to the then Prayer Book;
2. the Prayer Book (of 1662);
3. the Ordinal; and
4. "such reports as have been approved by the General Synod".

After considerable argument by the defence, the court ruled that numbers two and three of these criteria could not, in this case, be satisfactorily used as criteria for right doctrine. It was not, said the court, that they contained no reference to the resurrection of Jesus. Rather, the purpose of the Prayer Book and the Ordinal had to do with worship, not with setting out a specific doctrine in terms sufficient to try and condemn a person on. It would therefore not be just to allow these two sources.

Reports to General Synod did attempt the required clarity and accuracy about doctrine. But the court accepted the defendant's plea that no Synod had ever accepted such reports knowing that they could or would be used for the purpose of bringing a cleric to book on a charge of misconduct. They had, without exception, been presented in a spirit of free debate. The results of votes expressed acceptance by a majority at a particular point, rather than statements of authoritative teachings of the Church over time.

This left only the Thirty-Nine Articles as a possible source of criteria for a just verdict. This matter, as the court said later, proved extremely difficult to resolve. The points raised were many, and the arguments complex.

The prosecution's case rested heavily on an Archbishop's Commission of Christian Doctrine published in1968. Entitled Subscription and Assent to the Thirty-nine Articles the report concluded that

To abolish subscription [to the Articles] altogether might suggest that the Church [of England] no longer regarded doctrinal belief as important.

In this regard, the prosecution made the following main points:

• Unlike the other possible criteria for doctrinal misconduct, the Thirty-nine Articles were written specifically to ensure that the doctrinal limits of the Church of England did not broaden too much. A case heard by the Privy Council in 1850 had set the principle that the Articles prevail over other sources of good doctrine such as the ordinal.

• In particular, the Articles were introduced to defend the laity from false teachings; to promote the  unity of the Church of England; and to preserve and maintain "the doctrine of the Apostles".

• Regardless of any theological considerations, such as questions about the nature of the Bible's authority, it remains true that subscription and assent are specifically required by the Articles. This requirement has never been successfully challenged over four hundred years. On the contrary, the Articles have been given enduring legal status by successive Acts of Parliament.

• Subscription and assent have never been intended as mere formal responses to the Articles. They have from the first been presented and accepted as an ex animo response - that is, one "from the heart". If they have sometimes been treated as as a matter of form, that does not change their nature.

• It is not good law to claim that the function of the Articles is descriptive rather than normative. Both the Articles themselves and their long history show conclusively that they are there to establish, and not merely reflect, the mind of the Church.

The defence presented many arguments to refute the above points. Of these, the main ones were:

• The Articles are a dead document and should be suitably interred. They derive from a time which pre-dates almost all modern theology. Further, they belong to a cultural context which no longer exists.

• It is not true that an ex animo response in subscription and assent either prevails or is required.

• The Articles are based upon the Bible as "God's Word written". The assumption is that the Bible is divine instruction in writing about right doctrine. In the light of modern scholarship this is no longer tenable [4].

• The fact is that no two people subscribing and assenting to the Articles agree about the sense in which they are "agreeable to the Word of God".

• If the Articles are normative, unity with other Christian churches is futile since no other church could possibly accept them as they stand. If they can be changed later to allow unity, they can't be normative in a court of law.

The prosecution's arguments prevailed. It was true, said the court, that the Articles had been conceived and written a long time ago. But the Church of England, as an established church, had had many opportunities since then to remove them from its ruling statutes. This had not been done.

Their status as a doctrinal norm had consequently been satisfactorily established again and again in law.

Further, that the Measure of 2006 had passed through all the required steps before becoming law had demonstrated the intention that there should be an offence in relation to doctrine as well as to other matters of clerical conduct.

In that context, the court was obliged to take the Thirty-nine Articles as the norm against which to judge a possible doctrinal offence.

Article 4 of 1571 made in plain (albeit in out-of-date language) that the norm in terms of the doctrine of the Resurrection included the truth that it is an historical event in the same sense that the explosion of an atomic bomb over Hiroshima in 1945 is an historical event.

The Bishop's book had redefined the resurrection of Jesus as something other than an historical event for which there is sufficient evidence.

For these reasons, the court found that the Bishop was guilty under the Measure of the offence of misconduct. Because the resurrection is pivotal to right doctrine, and because of the Bishop's duty to preserve right doctrine, it was good and proper that the maximum sentence be imposed.
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[1] Just in case someone hasn't got the point, this article was written in 2005
[2] In the Church of England (Worship and Doctrine) Measure of 1974
[3] Clergy Discipline (Doctrine) Report 2004
[4] See A Prototype Church by Anthony Freeman

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