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Act 24, 2023 – Interim Act – Conduct, Complaints and Discipline of Office-bearers

  1. The General Assembly approve the following draft Act regarding Conduct, Complaints and Discipline of Office-bearers as an Overture to Presbytery under the terms of the Barrier Act:

The General Assembly, desiring the nurture, growth, and wellbeing of the people of God, and recognising the need for discipline within the life of the Church as a biblical principle that helps to secure such development, and seeking to revise and update the disciplinary processes of the Church to ensure fairness and natural justice to all parties, enact and ordain as follows regarding Complaints received against Office-bearers of the Church:

SECTION A – OverView 

This Act is arranged as follows:

Section A provides an overview of the Act.

Section B sets out the nature and purpose of discipline. It also explains the role of private counsel and the difference between church discipline and the civil courts.

Section C outlines some general provisions in relation to the Act including the establishment of the Conduct and Complaints Committee, rules governing Conflict of Interest, subjects of discipline under this Act, Jurisdiction, rules of evidence, Companions, potential outcomes, the rules governing Appeals, Requests for Review and Dissent and Complaints, reopening cases, the rules governing sists and the rules dealing with the absence of the Respondent.

Section D deals with the initial procedure following the receipt of a Complaint including the triage process and the provision of pastoral care to those involved in the Complaint. It also outlines the process for dealing with an allegation of Heresy.

Section E deals with the process for the investigation of a Complaint.

Section F deals with the report of the Investigation Group and explains the next steps after the Complaint is admitted or denied.

Section G deals with the Disciplinary Hearing in the event the Complaint is denied.

Section H outlines the processes to be followed in a case relating to Congregational Health.

Section I contains a Glossary of Terms.

Section J deals with the repeal of previous legislation.

SECTION B – NATURE AND PURPOSE OF DISCIPLINE

1. The Nature of Discipline. The General Assembly recognise the Scriptural emphasis on the place of discipline in the life of the Church. The purpose of the gospel is to make disciples of the Lord Jesus and to develop their Christian character through the regular activities of the preached Word, teaching, prayer, corporate worship, accountability relationships, pastoral oversight. This formative discipline takes place under the regular ministry of the Gospel. Corrective discipline is exercised by the Church when a believer’s behaviour is contrary to the Word of God and detrimental to the good name of the Lord Jesus. This Act is concerned with corrective discipline. It is carried out with the authority of Christ, the Head of the Church (Matthew 18:15-17). It is based on the love of God the Father (Hebrews 12:6) and is exercised with pastoral care for the development of the people of God (Hebrews 12:10).

2. Informal Resolution. It is clear from our Lord’s instructions in Matthew 18:15-17 that where someone sins against you it is appropriate to first bring the issue to them directly, either on your own or with one or two others. However, where the matter remains unresolved it is right “to bring it to the Church” (Matthew 18:17). This Act is concerned with how the Church should deal with a Complaint received by the Church. It must be recognised that there are some circumstances where the Complainant feels unable to go directly to the Respondent and this will not prevent the Church from intervening. It is inappropriate in some cases, including allegations of criminality and safeguarding concerns, to seek informal resolutions and the matter must be reported to the Church and the appropriate civil authorities.

3. The Purpose of Discipline. The purpose of Church discipline is to restore, heal, and build up believers (Galatians 6:1-2) and to maintain the honour of the name of our Lord Jesus Christ. Discipline is carried out in line with our biblical principles, our Presbyterian form of Church Government and Chapter 30 of the Westminster Confession of Faith. All processes must be just, compassionate (2 Corinthians 2:6-8), accessible and timeous in their impact upon the Respondent, Complainant and the body of Christ, the Church. Confidentiality must be maintained in all processes to uphold the wellbeing of Complainants, Respondents and Witnesses.

4. Church Discipline and Civil Courts. Church discipline is not the same as processes carried out by the secular courts (whether civil or criminal). The Church cannot therefore divest itself of the responsibility of ascertaining facts and their relevance. No proceedings or judgment of a secular court can be regarded as a substitute for due ecclesiastical process, though such judgments may help in determining whether a process is required. Church Courts must form their own judgments independently of proceedings in other courts.

SECTION C – GENERAL PROVISIONS 

1. Conduct and Complaints Committee. The General Assembly will establish a Conduct and Complaints Committee.

1.1. Remit. The Conduct and Complaints Committee will be responsible for:

1.1.1. Overseeing the Conduct and Complaints procedure of the Free Church of Scotland in relation to Office-bearers. This includes oversight of disciplinary processes and responsibility for oversight of the Triage Group and the Investigation Group.

1.1.2. Maintaining lists of suitable individuals to serve in the various capacities during a conduct and complaints process.

1.1.3. Preparing and publicising regulations and guidance in areas related to Complaints and discipline including regulations for carrying out an investigation, standards of conduct, examples as to what constitutes a disciplinary offence, and regulations outlining the procedures to be followed by Kirk Sessions in proceeding with a disciplinary case against an ordinary member of the Church. Any regulations shall be laid before and be subject to alteration, revocation, amendment, or modification by the General Assembly or its Commission.

1.1.4. Reviewing any completed disciplinary process with a view to improving future practice. An external reviewer shall be someone appointed by the General Assembly or its Commission from outside the Free Church of Scotland to review any concluded case. Due to the need to consider doctrinal and theological matters in any review the external reviewer must be a Christian. At the conclusion of the case, they will review the process and recommend any learning points for future cases. They shall report to Conduct and Complaints Committee and to the Principal Clerk. If they become aware of a serious failing, they may also report this matter to the General Assembly or its Commission via the Principal Clerk. 

1.1.5. Keeping all required records in a secure manner and complying with all legal data protection obligations and Free Church of Scotland policies.

1.2. Reporting. The Committee will report to the General Assembly or its Commission as and when required.

1.3 Membership. The Committee will be appointed by the General Assembly following nominations from Presbyteries. The Committee will have up to ten members. Six of the members must be Ministers or Elders within the Free Church of Scotland. Four additional members must be members of the Free Church of Scotland and at least three of those additional members must be female. All members of the Committee must have appropriate experience and expertise and have availability for regular training. Members of the Assembly Clerks’ Office are not eligible to serve on this Committee in any capacity.

1.3.1.Except where varied by the rotational principle the members will be appointed for a term of four years, renewable for a second term of four years. The maximum term of continuous service shall be eight years after which no member of the Committee shall be eligible for further service until one year has elapsed. In the first year of the implementation of this Act under a rotational principle three of the Minister/Elder members and one of the three female members shall be appointed in the first instance for a period of five years and, if appointed for a further four years, shall be permitted to serve for nine continuous years.

1.3.2. The General Assembly shall appoint one of the Elder or Minister members of the Committee as Chairman and one as Vice-Chairman. The Chairman and Vice-Chairman must come from different Presbyteries.

1.3.3. The Committee will also be empowered to make use of consultants who may come from outside the Free Church of Scotland.

1.3.4. The Committee will appoint one of their female members as the Nominated Female Representative who may also receive Complaints.

1.3.5. The identity of the Chairman, Vice Chairman and the Nominated Female Representative shall be clearly communicated within the Church along with their contact details for use when raising a Complaint. The Principal Clerk’s contact details will be communicated alongside this for use where the Complaint may relate to a member of the Committee

2. Conflict of Interest.

2.1. In any case where a member of the Committee has a Conflict of Interest, this must be declared, and an alternative person should be found to fulfil the role in the case. For the purposes of this Act only, a Conflict of Interest which will prevent someone acting, may be a genuine Conflict of Interestor a perceived conflict. Where another person is aware of a potential Conflict of Interest, they should inform the Principal Clerkwho will decide whether there is a Conflict of Interest.

2.2. No one shall serve on an Investigation Groupin any proceedings involving the Presbytery in which they reside.

2.3. No one shall be appointed to the Investigation Groupin any single case or series of related cases against a Respondent where they have previously acted as an Adviser for the Respondent.

2.4.Where at any stage in procedures under this Act multiple Conflicts of Interest arise, and no person named in this Act can make an appropriate decision, the matter should be brought to the attention of the Principal Clerk who will appoint appropriate alternative decision makers. Where the Principal Clerk is himself conflicted one of the Assistant Clerks shall assume this responsibility.  

3. Subjects of Discipline. The following shall be subject to investigation and discipline in terms of this Act:

3.1. Ministers. All Ministers including Ministers who are staff members at ETS, church planters, missionaries, retired Ministers, resigned Ministers, and those on the Roll of Ministers Without Charge.

3.2. Probationers.  A probationer is any person who has been licensed by a Presbytery as a preacher of the gospel but who has not yet been ordained.

3.3, Candidate. A candidate is any person who has been approved by the Board of Ministry as a candidate for the ministry in the Free Church of Scotland.

3.4. Elders. An Elder is any person who has been ordained as an Elder of a Congregation but for the purposes of this Act only shall not include anyone who is also a Minister. Elders includes those who are not currently serving as ruling Elders but who were previously ordained as an Elder.

3.5. Deacons.  A Deacon is any person who has been ordained as a Deacon of a Congregation.

3.6. For the avoidance of doubt, this Act only applies to Church Office-bearers and does not apply to:

3.6.1. Communicant members or adherents except where members undertake the roles set out in 3.1 to 3.5 above.

3.6.2. A former Office-bearer who was previously deposed from office and has not been restored.

3.6.3. Church employees (persons who work for the Free Church of Scotland by reason of having an employment contract from the Free Church or any Congregation) except where they are members of the Free Church of Scotland and undertake any of the roles set out in 3.1 to 3.6 above; or

3.6.4. Board consultants, advisers, and finance committee members except where they are members of the Free Church and undertake any of the roles set out in 3.1 to 3.5 above.

3.7 Deceased Respondent. Where a Respondent is deceased, it is not appropriate to proceed with a discipline case, although the Church Court with Jurisdiction may still conduct their own investigation into the circumstances and prepare a report into the matter identifying learning areas for the Church. The Church Court may seek the assistance of the Conduct and Complaints Committee in conducting their investigation. The Church Court may meet with any Complainants to assure them that although they cannot conduct any process, they are seeking to learn whether there are any general lessons which may be learnt from the Complaint(s).

4. Jurisdiction. The Presbytery or the Kirk Session will have Jurisdiction over the Subjects of Discipline.

4.1. Presbytery. Ministers, probationers, and candidates come under the Jurisdiction of the Presbytery. A Presbytery has Jurisdiction over an individual who has a seat on the Presbytery or who resides within the bounds of the Presbytery. Where a Minister no longer resides within the bounds of any Presbytery, the Presbytery where they last resided retains Jurisdiction.

4.2. Kirk Session. Elders and Deacons come under the Jurisdiction of the Kirk Session of the local congregation of which they are communicant members and office bearers. Where they are no longer a ruling elder within a congregation, they will come under the Jurisdiction of the Kirk Session where they are a communicant member. If they are no long a communicant member within the Free Church of Scotland, the Kirk Session which last had jurisdiction will retain Jurisdiction.

4.3. Multiple Parties. In any case involving multiple parties who come under the Jurisdiction of more than one Church Court, all parties should be dealt with by the same Court.

4.3.1. If the parties belong to different Congregations, the Kirk Sessions will consult with the Presbytery who shall advise as to which Kirk Session will deal with the matter.

4.3.2. If the parties belong to different Presbyteries, the Presbyteries will seek the advice of the Assembly Clerks’ Office who will give advice as to which Presbytery will deal with the matter.

4.3.3. If one of the parties against whom the Complaint is made is a Minister, ETS staff member, probationer or candidate, the Presbytery concerned must take up the case against all parties and in due course advise the Kirk Session having responsibility for the other person(s).

4.4. In all cases involving multiple parties the Court dealing with the case will keep all other Courts informed of the progress on the process of the case and will report the eventual outcome.

4.5. Congregational Health. Where an issue of Congregational Health arises, the Presbytery in which the Congregation is situated will have Jurisdiction.

5. Evidence.

5.1. Presumption of Innocence. The Respondent is presumed innocent until proven guilty.

5.2. Standard of Evidence. The standard of evidence required for the Respondent to be found guilty of the Complaint shall be on the balance of probabilities providing the requirements of Paragraph 5.3 are met. “Balance of probabilities” means that the Kirk Session or Presbytery will be satisfied that on the evidence before them it is more likely than not that the allegation is true. This is in accordance with the requirements of 1 Timothy 3:2 and Titus 1:7 that an Elder must be blameless and above reproach.

5.3. Witnesses. The testimony of more than one witness shall be necessary to establish any Complaint in accordance with the standard set out in Deuteronomy 19:15 and 1 Timothy 5:19 where a single witness is insufficient.

5.3.1. However, it is understood that supporting evidence, such as documentary evidence or video evidence can serve as the equivalent of one of those witnesses, and this shall satisfy the principle expressed by the Biblical passages. A witness will be required to establish the authenticity of the supporting evidence, unless agreement is reached that the supporting evidence is authenticated.

5.3.2. It is necessary to establish the credibility and reliability of each witness before deciding whether there is sufficient evidence for the purposes of Paragraph 5.2 above. Deuteronomy 19:16-21 makes clear that a witness should be carefully examined and where a communicant member is proven to be a Malicious Witness, they themselves could be subject to disciplinary procedures.

5.3.3. In assessing the credibility and reliability of each witness it is competent to consider Hearsay evidence of statements made at the time of the incident to show whether a witness has been consistent in their evidence. Such evidence may also include a description of distress. However, this kind of Hearsay evidence will not qualify as a second witness statement for the purposes of Paragraph 5.3.

5.3.4. Previous signed witness statements can also be used to illustrate previously inconsistent statements which may assist the Church Court in determining the credibility and reliability of the witness.

5.4. Hearsay. Hearsay evidence is generally excluded from consideration except where either:

5.4.1. The witness is now deceased.

5.4.2. For the purposes of establishing credibility and reliability of a witness in accordance with Paragraph 5.3.3.

5.5. Circumstantial Evidence. Circumstantial evidence may be used in pursuing a Complaint. However, it is generally recognised that where circumstantial evidence alone is being used multiple strands of circumstantial evidence must be produced to establish a Complaint.

5.6. A Course of Conduct. A Complaint may relate to a course of conduct, as opposed to a particular incident. In such cases the testimony of multiple credible and reliable witnesses to the course of conduct will be sufficient, even where there are not multiple witnesses as to any individual incidents.

6. Companion. It is open to anyone who appears before a Church Court or Committee to be accompanied by a Companion for support, although usually that person is not permitted to speak. A Respondent’s Companion may be their Adviser.

7. Potential Outcomes. In all cases where the Complaintis admitted or established by a Church Court, the Kirk Session or Presbytery may decide on one of the following courses of action:

(1) No Action (Paragraph 7.1)

(2) Minor Censure – Admonition or Rebuke (Paragraph 7.2)

(3) Major Censure – Suspension from Privileges, Suspension from Office, Deposition from Office, or Removal of Status (Paragraph 7.3)

7.1. No Action. To take no further action due to the minor nature of the Complaint.

7.2. Minor Censure. For less serious offences, to impose a minor censure such as Admonition or Rebuke.

7.2.1. Minor censure may be accompanied with an instruction to the Respondent to undertake appropriate pastoral counselling.

7.2.2. Admonition is the lightest form of minor censure and involves counselling against sin and exhortation to more careful and worthy conduct.

7.2.3 Rebuke, which is a more serious form of Admonition, and may be administered before the Kirk Session or Presbytery or before the Congregation.

7.3. Major Censure. For more serious offences or for repeated minor offences, to impose a major censure such as Suspension or Deposition

7.3.1. Suspension from Privileges. Suspension from Gospel privileges is the denial of participation in the Lord’s Supper or Sacrament of Baptism for the Respondent’s child for a fixed period to encourage repentance. In the case of a Minister, the Suspension of Privileges includes the Temporary Suspension of the right to preach the gospel but does not include the severance of the pastoral tie. The Minister suspended from privileges will continue to receive the stipend. Restoration of privileges at the end of the fixed period is not automatic but depends on the Court being satisfied that the offender is truly penitent. Where an offender is not penitent after a period of time a more severe censure may be imposed following a further meeting of the Church Court with the Respondent and the Presenter of the Case.

7.3.2. Suspension from Office. Suspension from Office includes suspension from Gospel privileges as in 7.3.1. above. In the case of a Minister, Suspension from Office includes the suspension of the licence to preach the Gospel, the severance of the pastoral tie for a Minister in a Congregation, and the termination of appointment for a Minister in a Free Church appointment.

7.3.2.1. Suspension from Office may be for a fixed period or indefinitely. Where suspension is for a fixed period, restoration is not automatic but depends on the Church Court being satisfied the person is truly penitent.

7.3.2.2 Where the party is paid a stipend, this will cease upon Suspension from Office.

7.3.2.3.Suspension of a Minister from Office will always include a declaration that the Minister is removed from his Congregation. Immediately on the Minister being suspended from Office, the outcome is to be intimated in his Congregation, the Congregation declared vacant, and another Minister appointed as Interim-Moderator.

7.3.3. Deposition from Office or Removal of Status. This is the most severe form of censure. This will be accompanied by removal of gospel privileges such as the Lord’s Supper and the Sacrament of Baptism.

7.3.3.1. Where the party is paid a stipend, this will cease upon deposition.

7.4 Restoration from Suspension.  A Minister or Probationer suspended from Office may apply by petition for restoration to the Presbytery which currently has Jurisdiction over him. The application for restoration will be intimated to all Presbyteries. Elders and Deacons suspended from Office will apply for restoration to the Kirk Session who has Jurisdiction over them, who will also notify the Kirk Session which imposed the suspension.

7.4.1. Any case for restoration will also be intimated to the Conduct and Complaints Committee.

7.4.2. A person suspended from Office may be restored to Gospel privileges without being restored to Office.

7.4.3. The name of a Minister whose suspension from Office is lifted will be added to the Roll of Ministers Eligible for Call. He will not be automatically restored to his previous congregation.

7.5 Restoration from Deposition or from Removal of Status. It is competent for a Minister to be restored to his status, and for a Probationer to have his licence restored, upon professions of repentance which seem to be borne out by a course of consistent conduct, but great caution is requisite in entertaining the question of such restoration.

7.5.1. A Minister deposed or Probationer removed may apply by petition for restoration to the Presbytery which currently has Jurisdiction over him. The application for restoration will be intimated to all Presbyteries.

7.5.2. A Minister or Probationer may be restored to Gospel Privileges without being restored to office or status.

7.5.3. The name of a Minister or Probationer restored to Office will be added to the Roll of Ministers Eligible for Call or the Roll of Probationers respectively.

7.5.4. Elders and Deacons deposed will apply for restoration to the Kirk Session who has Jurisdiction over them, who will also notify the Kirk Session which imposed the suspension. 

7.5.5. Restoration of an Elder or Deacon who has been deposed is restoration of privileges which includes eligibility for election to office.

7.5.6. Any case for restoration will also be intimated to Conduct and Complaints Committee.

8. Appeals / Reviews / Dissents. In order to ensure the integrity of the process an appeal, request for review, or a dissent and complaint will only be permitted at the point of disposal of a case.

8.1. Process. The decision of a Kirk Session may be appealed / reviewed by the Presbytery; and the decision of a Presbytery may be appealed / reviewed by the Commission of Assembly or directly to the General Assembly.

8.2. Appeal. An appeal is the procedure whereby the Respondent brings a matter under the review of a higher Church Court. A written appeal with reasons must be submitted within ten days of the Respondent being given the written decision of the Church Court.

8.3. Request for Review. A request for review is the procedure whereby the Complainant or the Presenter of the Case requests that a higher Church Court reviews the decision in the case. A written request for review with reasons must be submitted within ten days of the Complainant or the Presenter of the Case being given the written decision of the Church Court.

8.4. Dissent and Complaint. A Dissent and Complaint is the procedure whereby any member of a Church Court who has objected to the decision of the Church Court during the decision-making process may bring the matter under review by a higher Church Court.

8.4.1. The intention to dissent and complain must be stated immediately by the member of the Church Court, upon the pronouncement of a final decision.

8.4.2. The member of the Church Court will be given ten days from the date of pronouncement of the final decision to formally submit to the Church Court their written dissent and complaint with reasons.

8.5. Simple Dissent. A simple dissent is the procedure whereby any member of a Church Court whose conscience is aggrieved by the decision of the Church Court may have a dissent recorded in the Minutes of the Court. A simple dissent without a complaint does not bring the matter under the review of a higher Church Court.

8.6. Grounds. An appeal, request for review or a dissent and complaint may only be brought on the grounds of procedural irregularity, severity of censure or misapplication of Scripture or Church law. It is not usually appropriate for a higher Church Court to re-examine witnesses and accordingly no appeal can be brought in relation to the factual decision except where a finding has been made without support from the evidence or is plainly wrong.

8.7 Sisting Proceedings. Any appeal, request for review or dissent and complaint shall sist the carrying out of the censure until the higher Church Court has considered the case.

8.8. Hearing. An appeal, request for review or dissent and complaint shall be heard within 1 month of the relevant written document being received by the clerk of the higher Church Court. Where more than one party has raised an appeal, request for review or dissent and complaint in relation to the same matter they shall all be dealt with together by the higher Church Court.

8.9 Adviser at Hearing. At the General Assembly or its Commission, the Principal Clerk will advise the Assembly on the procedure for the hearing. If the appeal, request for review or dissent and complaint is being consider by a Presbytery the Principal Clerk will appoint an Independent Adviser to the Court to advise on procedure.

9. Re-opening a Case. Once a final decision has been pronounced in the proper form, the case cannot be re-opened except on the presentation of new material evidence, which the Church Court could not have been aware of at the time of the original decision.

9.1. Petition. Where someone believes a case should be re-opened, a petition, outlining the new evidence that has come to light (“Petition”), should be submitted.

9.1.1. Where a case relates to a Minister, Probationer or Candidate the Petition should be submitted to the General Assembly or its Commission.

9.1.2. Where a case relates to an Elder or Deacon the Petition should be submitted to the local Presbytery.

9.2. Triage Group. In the event that the Church Court to which the Petition has been submitted decides to re-open a case it reverts to the Triage Group to put in place a new Investigation Group and begin the process.

9.3 Restoration. Where new evidence makes clear that the Respondent was innocent, they will be restored to their Office.

10. Sisting Proceedings.

 10.1 Situations. The Presbytery or Kirk Session may sist proceedings under this Act, in whole or in part, in any of the following situations:

10.1.1. Pending the outcome of any civil or criminal proceedings or relevant investigations which relate to the Complaint with a decision whether to sist proceedings or not being taken on a case-by-case basis. 

10.1.2. Due to the ill-health of the Respondent or of a material witness which prevents the Respondent or material witness from taking part in such proceedings. In the case of the Respondent a medical report should be provided.

10.1.3. For any other reason deemed appropriate.

10.2 Request for Sist.  The Investigation Group, the Presenter of the Case or the Respondent may make a request to the Presbytery or Kirk Session that the proceedings be sisted.

10.3. Duration of Sist. Once a Sist has been imposed, it shall be presumed to continue until such time as the circumstances leading to its imposition no longer pertain, although the Moderator and Clerk of the Church Court who imposed the Sist should review the Sist every month to ensure that it is still required and may decide it is no longer appropriate.

10.4. Review. The appropriateness of the Sist continuing shall also be subject to review, upon request by the Respondent, at three-monthly intervals from the date of its imposition. Each of these reviews shall be undertaken and decided upon by the Principal Clerk, whom failing one of the Assistant Clerks, who shall have power to lift the Sist upon cause shown by the Respondent.

11. Absence of Respondent. Where a Respondent repeatedly fails to appear before a Church Court or Committee, a charge of Contumacy may be brought against them.

11.1. The Process. This non-appearance need not prevent the Church Court considering the evidence before it and coming to a verdict on the original accusation. However, if they wish to proceed to deposition of a minister as a censure, they must report the matter to the General Assembly or its Commission as only the General Assembly has the authority to depose a Minister in his absence.

SECTION D – INITIAL PROCEDURE FOLLOWING A COMPLAINT  

1. Making a Complaint. The following parties can raise a Complaint:

1.1. A communicant member of the Free Church of Scotland. 

1.2. An adherent of the Free Church of Scotland.

1.3. A member of the public. 

1.4. Any Church Court where circumstances come to their attention which indicate that an issue requires investigation.

1.5. In all cases, individuals will be identified within the church who can provide support to those considering making a Complaint.

2. Timely Manner. A Complaint should be submitted in timely manner in order to preserve and maintain the quality of the evidence.

3. Receiving a Complaint. Parties raising a Complaint should report the matter to the Chairman and Vice Chairman of the Conduct and Complaints Committee. A Complaint should be acknowledged within three days.

3.1. Nominated Female Representative. Parties may elect to report their Complaint to the Nominated Female Representative of the Committee, who will pass the Complaint to the Chairman and Vice Chairman.

3.2. Church Court. Where a Church Court receives a Complaint the Presbytery Clerk and / or Moderator will pass the Complaint to the Chairman and Vice Chairman of the Conduct and Complaints Committee.

3.3. Duty of Office-bearers. It is the duty of every Office-bearer in the Church who receives notice of a Complaint to pass the Complaint to the Chairman and Vice Chairman of the Conduct and Complaints Committee.

3.4. Online Submission. A Complaint may also be submitted via the Free Church website (www.freechurch.org). Information will be provided on the website as to how complaints are dealt with and who will receive the information. An alternative route for the submission of a Complaint will be available for situations where contact with any of the named individuals may be inappropriate or unsuitable.

3.5. Conflict of Interest. In the event of a potential Conflict of Interest (such as where a Complaint relates to a member of the Conduct and Complaints Committee) the Complaint can be brought to the Principal Clerk whom failing another member of the Assembly Clerk’s Office who will arrange for an independent Minister or Elder within the Free Church of Scotland with appropriate training and expertise to oversee the Complaint (the “Independent Person”). The Independent Person will follow the rest of the procedures outlined in this Act but shall be free to appoint appropriate independent individuals in consultation with the Assembly Clerks’ Office.

3.6. Safeguarding. If the Complaint involves allegations of criminality or safeguarding concerns, the Church’s safeguarding and criminality reporting processes should be followed alongside the Conduct and Complaints process.

3.7. Temporary Suspension – Initial Stage. Upon receiving the Complaint, the Chairman and the Vice-chairman of the Conduct and Complaints Committee, in consultation with the CEO of the Free Church of Scotland (“CEO”) and the Principal Clerk, will decide whether Temporary Suspension is appropriate.

3.7.1. Respondent. Where Temporary Suspension is considered appropriate the Chairman will inform the Respondent that they are temporarily suspended.

3.7.2. Presbytery. The Chairman will also inform the Presbytery who will hold a meeting within seven days to ratify the temporary suspension. At such a meeting, they will hear from the Respondent and the Chairman of the Conduct and Complaints Committee.

3.7.3. If the Respondent is a Minister, and he is placed under Temporary Suspension, the Presbytery will appoint an Interim-Moderator to the Respondent’s Congregation.

3.7.4. Where the Respondent is a candidate or probationer, a Temporary Suspension on the Respondent may pause the candidate’s training and will render the probationer ineligible to receive a call from a vacant Congregation or to respond to such a call.

3.8. Temporary Suspension – Later Stages. If at any later point during the investigation process the Chairman and the Vice-chairman of the Conduct and Complaints Committee, in consultation with the CEO and the Principal Clerk, come to the view that Temporary Suspension is now required they may impose a Temporary Suspension and then seek Presbytery ratification under Paragraph 3.7.2.

3.9. Temporary Suspension – Exception for Serious Cases. In the most serious cases (such as those involving safeguarding concerns or criminality) the Chairman of the Conduct and Complaints Committee can impose immediate Temporary Suspension but will then inform the Presbytery for ratification under Paragraph 3.7.2.

4. Resignation.  Once a Complaint has been received by the Committee, the Respondent will not be entitled to resign their status.

5. Triage Group.  Upon receiving a Complaint, a Triage Groupwill be formed under the authority of the Committee to decide which category the Complaint falls under.

5.1. Membership.  The membership of the Triage Group will be the Chairman and the Vice-chairman of the Conduct and Complaints Committee, the Clerk of the Presbytery in which the misconduct is alleged to have occurred and one of the female members of the Conduct and Complaints Committee appointed by the chairman.

5.2. Complaint. The Triage Group shall consider the Complaint and decide how best to proceed with the matter. They may consult with others as they deem it appropriate. Where a Complaint is not submitted timeously it is appropriate to consider the reasons why there has been a delay and the impact this may have had upon the quality of the evidence. They will decide into which category the Complaint falls.

6. Complaint Categories. The Triage Group will place the Complaint into one of the following categories:

(1) A Low-Level Complaint (Paragraph 6.1)

(2) A Disciplinary Offence (Paragraph 6.2)

(3) A Heresy Complaint (Paragraph 6.3)

(4) A Non-disciplinary Complaint (Paragraph 6.4)

6.1 A Low-Level Complaint. The Triage Group will determine whether the Complaint is a Low-Level Complaint.

6.1.1. In determining whether a Complaint is Low-Level the Triage Groupshall speak with the Complainant.

6.1.2. Where the Complaint is believed to be Low-Level, the Triage Groupwill report to the Kirk Session or Presbytery with Jurisdiction who will meet within twenty-one days to decide whether to declare the Complaint to be Low-Level.

6.1.3. Where the Kirk Session or Presbytery declares the Complaint is Low-Level, the procedures under this Act will cease unless there is a request for review or a dissent and complaint. Pastoral care will continue for all parties.

6.1.4. Where the Kirk Session or Presbytery does not believe the Complaint is Low-Level the Triage Group will appoint an Investigation Group.

6.2. A Disciplinary Offence. The Triage Group will determine whether the Complaint relates to a potential disciplinary offence.

6.2.1. Where the Triage Group decides that the matter does relate to a potential disciplinary offence, they will decide whether the matter relates to conduct or amounts to an allegation of Heresy.

6.2.2. Where the Triage Group determines that the matter relates to a potential Conduct Disciplinary Offence, they will (unless the matter is considered sufficiently minor) appoint an appropriate Investigation Group, led by a member of the Conduct and Complaints Committee, to investigate the circumstances and report in accordance with Sections E & F of this Act.

6.2.3 Presenter of the Case. The Triage Groupwill determine who will be the Presenter of the Case(usually the Chairman or the Vice Chairman of the Conduct and Complaints Committee).  The Presenter of the Case will normally have been the reviewer of the Case but will not have been part of the Investigation Group.

6.2.4. Informal Resolution. Where the Triage Groupis of the view the conduct that is the subject of the Complaint is minor and can be dealt with informally, they will report to the Kirk Session or Presbytery with Jurisdiction and propose how best to deal with the matter. The Kirk Session or Presbytery will report back to the Triage Group the outcome of the informal resolution and whether the matter is resolved. The Triage Group will assess the report and decide if further intervention is required.

6.3. A Heresy Complaint. The Triage Group may determine that the Complaint relates to an allegation of Heresy. 

6.3.1. The Triage Group will consult with the Principal Clerk and the Principal of Edinburgh Theological Seminary to consider if the General Assembly has a settled opinion on the theological question or if the issue is one on which the Church recognises a liberty of opinion. The Principal of Edinburgh Theological Seminary may consult with other faculty members at ETS.

6.3.2. If there is a settled position on the matter, the Respondent will be asked if he accepts the Church’s position. If the Respondent accepts that he has made an error and resolves to correct his thinking, that is the end of the matter (unless the same issue is raised again). If the Respondent refuses to change his opinion, then the Triage Group will proceed with a normal disciplinary procedure under Sections E-G of this Act.

6.3.3. Where the Church does not have a settled opinion on the matter, a Theological Committee will be appointed to investigate the question and report to the General Assembly or its Commission.

6.3.3.1. The Theological Committee will discuss the theological question with the Respondent.

6.3.3.2. The General Assembly or its Commission will receive a report from the Theological Committeeand may sustain the report, seek further clarity, or make their own finding on the issue. It is open to the Theological Committee and the General Assembly or its Commission to declare the matter to be one on which Scripture allows liberty of conscience and accordingly make no ruling as to the correct interpretation of Scripture.

6.3.3.3. After a conclusion on the theological question has been reached, the Triage Groupwill again consider the accusation of Heresy. If the accusation is contrary to the now settled position of the Church, the Respondent will be asked if he accepts the Church’s position on the matter. If the Respondent accepts the Church’s settled position and confirms he has amended his thinking, that is the end of the matter (unless the same issue is raised again). If the Respondent refuses to change his opinion, then the Triage Group will proceed with a normal disciplinary procedure under Sections E-G of this Act.

6.4. A Non-disciplinary Complaint. The Triage Group will make an initial assessment as to whether the matter is a Non-disciplinary Complaint. Issues which will be deemed Non-disciplinary include Capability and issues of Congregational Health.

6.4.1. Capability. Where an issue relates to Capability for Ministry, the Triage Group will refer the matter to the Chair of the Board of Ministry who will support the Presbytery in proceeding under the Church’s capability procedures. Where a Capability issue is raised in relation to a member of ETS Staff the Triage Group will refer the matter to the ETS Board to follow ETS’s capability procedures. Where the Complaint relates to both conduct and capability the conduct aspects will be investigated first as a Disciplinary Complaint under Paragraph 6.2.

6.4.2. Congregational Health. Where an issue is related to Congregational Health, the Triage Group will consider what evidence they have that the health of the Congregation is unsatisfactory. Evidence of this may include an undue falling away of attendance at public worship and/or undue withdrawal of financial support of the Congregation. Congregational Health could also relate to a break down in the relationships in the Congregation, such as between the Congregation / Office-bearers and the Minister or between the Congregation and the Office-bearers. A Congregational Health issue will be reported to the Presbytery and the matter will be investigated in accordance with the procedure set out in Section H of this Act.

6.4.3. POV Reports. If in the process of carrying out a Presbytery Oversight Visit of a Congregation an issue of Discipline, Capability for Ministry or Congregational Health is identified, the Presbytery shall bring the matter to the attention of the Chairman of the Conduct and Complaints Committee who will convene the Triage Group.

7. Pastoral Care. At the same time as a Triage Group is convened, the Chairman will contact the Church Court with Jurisdiction and the Board of Ministry to advise that a Complaint has been received and request that they ensure appropriate pastoral care is provided.

7.1. The Presbytery. The Presbytery’s Pastoral Team will put in place arrangements for appropriate pastoral care with the approval of the Board of Ministry.

7.2. The Kirk Session. In a case involving an Elder or Deacon, a referral will be made by the Kirk Session to the Presbytery Pastoral Team to put in place appropriate pastoral care.

7.3. Board of Ministry. The Board of Ministry will ensure that appropriate pastoral care is in place through its Reference Team. Where the Board is not satisfied with the arrangement of the Presbytery’s Pastoral Team or are of the view that it is more appropriate in the circumstances of the case to call on those out with the Presbytery to provide Pastoral Care, they may intervene and make alternative arrangements.

7.4. Recipients of Pastoral Care. A person who is unsatisfied with the Pastoral Care provided may also make their concerns known to the Board of Ministry Reference Team.

7.5. Confirmation. The Board of Ministry will report back to the Conduct and Complaints Committee that Pastoral Care is in place but will maintain confidentiality and will not be required to report on the content of any pastoral care.

7.6. Recipients. The following will be provided with appropriate pastoral care:

7.6.1. The Respondent and his family.

7.6.2. Any Complainant(s) and their family.

7.6.3. Any witnesses in respect of the Complaint.

7.6.4. The Congregation, bearing in mind the need for confidentiality.

7.6.5.Any Office-bearers involved in the Complaint.

7.7. Congregational Health. In cases involving Congregational Health, pastoral care will be provided to the Minister and the Elders of the Congregation.

7.8. Caretaker Minister. The Board of Ministry, in consultation with the Presbytery and the Mission Board, may appoint a Minister as caretaker to provide pastoral care to a Congregation for a defined period if they consider this necessary. They may request that the Board of Trustees makes available budgetary provision for the Caretaker Minister.

7.9. Conflict of Interest. Anyone appointed by the Presbytery Pastoral Team or by the Board of Ministry to provide pastoral care will not participate in any procedure before a Church Court relating to the discipline case even if they are members of the Church Court.

8. Adviser. The Board of Ministry will also ensure that an Adviser has been appointed to assist the Respondent with matters of Church law and procedure.

8.1 Powers of the Adviser. During an investigation interview they are not permitted to answer questions on behalf of the Respondent but may ask questions or make clarifying statements. During a Hearing they may present the Respondent’s defence.

8.2. Privilege. The relationship between the Adviser and the Respondent shall be governed by privilege and confidentiality in order to enable the Respondent to freely discuss the case with their Adviser. This means that Advisers cannot disclose the details of their conversations.

9. Notifying the Respondent. If the Triage Group determines an Investigation is required, the Chairman of the Conduct and Complaints Committee will write to the Respondent to confirm that a Complaint has been received, advising as to its general nature, and providing a list of Advisers who the Respondent may approach to receive advice and guidance in relation to Church law and procedure. The Respondent will also be given an overview of the process written in plain English.

10. Reporting. The outcome of the Triage Group’s assessment will be reported for information to the Principal Clerk and the CEO. The Investigation Group will report to the Kirk Session or Presbytery on a monthly basis.

11. Investigation Group. The Investigation Group will be appointed by the Conduct and Complaints Committee in consultation with the Triage Group.

11.1. Membership. Members of the Investigation Group will be appointed who have appropriate experience depending on the nature of the Complaint. At least one woman and one man will always be appointed to the Investigation Group.

11.2. Co-opted Members. Normally, members of the Conduct and Complaints Committee will be appointed to the Investigation Group. However, where the circumstances require it or particular expertise is required, others can be co-opted onto the Investigation Groupor may act as Advisers.  The typical size of an InvestigationGroup will be three people including a female member.

11.3. Remit. The remit of the Investigation Group is to investigate the matter and prepare a report on their findings.

11.4. Exclusions. No one will be appointed to the Investigatory Group who is a member of the same Presbytery as the Respondent or a member of any local Congregation within the same Presbytery.

11.4.1.Exception. The exception to the rule in Paragraph 10.4 occurs in a case of Capability or Congregational Health where the Investigation Group will be appointed by the Presbytery and will be support by the Conduct and Complaints Committee.  In these cases, the Chair of the Investigation Group will be a member of the Presbytery.

SECTION E – INVESTIGATION OF A POTENTIAL DISCIPLINARY MATTER

1 The Court of Jurisdiction. If the decision is made to commence with an Investigation, the Chair of the Investigation Group will report to the Kirk Session or Presbytery that they are conducting an Investigation.

2. The Respondent.  The Investigation Group will again intimate in writing to the Respondent the terms of the Disciplinary Complaint and advise on the next steps.

2.1. Response. They will ask the Respondent to provide a written response to the Complaint within fourteen days and they will invite the Respondent to an interview with the Group.

2.2. Extension. The Respondent may request in writing more time to respond to the Complaint and will be given a maximum of twenty-eight additional days to respond.

2.3. Failure to Respond. Where the Respondent fails to respond or refuses to respond this will be noted in the final report

3. Respondent’s Adviser. At any investigatory interview the Respondent’s Adviser may be present.

4. Witnesses. The Investigation Group will also contact the Complainant(s) and any other Witnesses to take statements (which shall be read over by and signed by the Witnesses) and collect any other evidence. They may also record the full interviews with the Witnesses with the permission of the Witnesses.

5. Further Allegations. If, during the investigation, the Investigation Group becomes aware of further allegations against the Respondent, which may constitute a Disciplinary Offence, then they shall also investigate those allegations.

6. Time Limits. In the interest of all parties, the Investigation Group shall complete the Investigation as soon as reasonably practicable. They shall carry out an Investigation and prepare a report not later than three months from the date that the Chairman received the Complaint.

6.1. Special Circumstances. Where there are special circumstances which mean the Investigation cannot be concluded in three months, the Investigation Group will report to the Kirk Session or Presbytery the reason for the delay and will notify the Respondent and the Complainant.

6.2. Delay. The Kirk Session or Presbytery will decide whether the delay is reasonable and will declare a new time limit.

7. Support for those Investigating. Members of the Investigation Group may require taking a leave of absence from other duties within the Church, including pastoral ministry, while investigating the case. The Principal Clerk in consultation with the Presbytery and the CEO is empowered to grant such requests.

SECTION F – REPORT OF THE INVESTIGATION GROUP

1. Report. The Investigation Group will prepare a report on their investigations to include the following:

1.1. Parties. The report will include details of the Complaint, the Complainant, and the Respondent.

1.2. A Case to Answer. The report will include the recommendations of the Investigation Group as to whether there is a Case to Answer.

1.3. A Charge.  The report will include details of the appropriate Charge. The Charge may relate to a course of conduct instead of any one incident. The Investigation Group may consult the Church’s Solicitor for advice on the wording of the Charge.

1.4. Evidence. The report will include the evidence on which the Charge is based but will, as far as possible, maintain the confidentiality of the Witnesses.

2. Review of Report. The report will be reviewed by a member of the Conduct and Complaints Committee who has not been involved in the Investigation This will usually be the Presenter of the Case.

3. No Case to Answer. Where the report concludes there is no Case to Answer this will be reported to the Kirk Session or Presbytery with Jurisdiction who will meet within twenty-one days to decide whether they agree there is No Case to Answer. Where the Kirk Session or Presbytery declares there is no Case to Answer, the procedures under this Act will cease unless there is a request for Review or a Dissent and Complaint.

4. Complainant. The Investigation Group will update the Complainant on the progress of the Complaint. However, they will not provide the Complainant with a copy of the report to maintain confidentiality.

5. Respondent. A copy of the report will be sent to the Respondent with a letter asking them to give an answer to the Complaint and the Charge. The Respondent will be asked to give their response to the letter in writing within twenty-one days.

5.1. Office-bearers. The Respondent as an Officer-bearer within the Church has agreed to subject himself to the judicatories of the Church and accordingly owes a duty of candour to Church Courts.

5.2. A Meaningful Response. The Respondent is therefore required to give a meaningful answer to the report and to either admit or deny the allegations. Silence is not a meaningful response, and a negative inference can be drawn from silence.

6. Confession. Where the Respondent admits the Charge, the Presenter of the Case, in consultation with the Chair of the Investigation Group, will consider the nature and extent of the confession to satisfy themselves as to whether or not it covers the total allegation or allegations.

6.1. A Genuine Confession. If they are satisfied the Confession covers the total allegation or allegations and that the Confession is genuine, they will ask the Clerk of the Kirk Session or Presbytery to convene a meeting to consider the report and the Confession, along with their recommendation as to an appropriate outcome in accordance with Section C Paragraph 7.

6.2. Kirk Session or Presbytery. In considering the appropriate outcome in accordance with Section C Paragraph 7, the Kirk Session or Presbytery will have due regard to whether they believe genuine repentance on the part of the Respondent.

6.3. Mitigating Circumstances. They will also hear from the Respondent and / or their Adviser as to whether there are any mitigating circumstances. It may be necessary to obtain a medical report or other evidence to support the existence of mitigating circumstances.

6.4. Aggravation.  They will also consider whether there has been any aggravation as part of the offence. They may take up victim impact statements to assist in this process.

6.5. Female Adviser. The Kirk Session or Presbytery will appoint a suitably experienced Female Adviser to the Court who can take part in any discussions regarding an appropriate outcome but who will not have the right to vote.

7. Denial. Where the Respondent denies the Charge, the Presenter of the Case will notify the Clerk of the Kirk Session or Presbytery of the need for a Disciplinary Hearing.

SECTION G – THE DISCIPLINARY HEARING

1. Preliminary Matters. The Kirk Session or Presbytery will hold a special meeting immediately after receiving notification from the Presenter of the Case for the purpose of making arrangements for the Disciplinary Hearing to be held no sooner than twenty-eight days’ time and no later than three months’ time.

1.1.Citation. The Clerk of the Kirk Session or Presbytery will issue Citations to the Respondent, Complainant, and all Witnesses. He will also notify the Presenter of the Case of the date of the Hearing.

1.2 Different Kinds of Citation. There are two kinds of Citation:

1.2.1. The first kind is a Citation delivered openly in the Court to those involved who are present at the time when the decision is taken to issue the Citation. The Citation should be minuted.

1.2.2. The other Citation is a formal written summons requiring attendance at a Church Court and delivered to the person named or to his/her dwelling and the fact of its being so delivered duly certified. Such certification may be made by someone appointed by the Court to deliver the Citation, or by use of Registered Mail, or recorded delivery using the facility which involves official notice from the Post Office that delivery to the address has been made. The Court should minute at its next meeting the receipt of appropriate confirmation from the person appointed or the company so contracted.

1.3. Failure to Appear. When the Court is ready to proceed with the case and has been satisfied that all Citations have been duly delivered it calls all parties concerned before it.  If a person duly cited does not appear at the time and place specified, a second Citation should be served.

1.4. Contumacy. Where a person duly cited two times, fails to appear or to give a satisfactory reason for non-appearance they are liable for censure for Contumacy. For the avoidance of doubt, one of the two citations may be the Citation delivered openly before the Court.

1.5. Female Adviser. In any case proceeding to a Hearing, the Kirk Session or Presbytery should appoint a suitably experienced Female Adviser to the Court who can take part in any discussions of the Kirk Session or Presbytery regarding their decision but who will not have the right to vote.

1.6. Training. Prior to the Hearing, the Principal Clerk will arrange for appropriate training to be provided to members of the Church Court who will be making the decision. Only members of the Church Court who have participated in the training can take part in the Hearing and make the decision. The Principal Clerk will also appoint an Independent Adviser to the Court to advise on procedure.

1.7. Questioning the Witness. The Kirk Session or Presbytery should empower three people to question the Witnesses on behalf of the Court during the Hearing. One of these three people should be the Female Adviser to the Court. Any other member of the Kirk Session or Presbytery who has questions should pass them to these designated questioners. The Moderator shall not be one of these people as they will be responsible for chairing the Hearing.

1.8. Disclosure. The Presenter of the Case will note the requirement that each party in the Hearing is required to disclose any documents that may be considered relevant to the case. They will also provide the Respondent with a list of Witnesses for the Hearing. This disclosure should take place within seven days of a hearing being arranged.

2. Legal Representation.

2.1. The Presenter of the Case.  The Presenter of the Case, in consultation with the Principal Clerk and the CEO, may, owing to the complexity of a case, decide to appoint Legal Representation to prosecute the case on behalf of the Presenter of the Case.

2.1.1. In a case where it is decided to appoint Legal Representation, the Respondent will have an automatic right to appoint Legal Representation to ensure fairness.

2.1.2. In all cases where the Respondent appoints Legal Representation, the Presenter of the Case may also decide to appoint Legal Representation.

2.2. Respondent. The Respondent will be informed of their right to ask for Legal Representation where the case is sufficiently complex. In all other cases they must seek the permission of the Principal Clerk who will, in consultation with the CEO, determine if the case is sufficiently complex to warrant the appointment of Legal Representation.

2.2.1. Where permission to appoint Legal Representation as in Paragraph 2.2 above is not given, the Respondent may fund their own Legal Representation.

2.2.2. Where the Respondent does not have Legal Representation, their Adviser may assist in representing them or they may represent themselves. However, in a case involving sexual misconduct or abuse, the Respondent is prohibited from questioning any of the Witnesses (their Adviser or Legal Representation will question the Witnesses), although they may still choose to conduct their own defence, particularly making any closing statements.

2.3. Budgetary Provision. The Board of Trustees will make budgetary provision to cover the costs of Legal Representation for both parties where Legal Representation has been appointed in terms of Paragraphs 2.1. and 2.1.1. or where permission has been given to the Respondent in terms of Paragraph 2.2.

2.3.1. Where Permission is not granted, but the Respondent proceeds to appoint Legal Representation in terms of Paragraph 2.2.1., and the Presenter of the Case exercises their right to appoint Legal Representation in response under Paragraph 2.1.2., the Board of Trustees will make budgetary provision to only cover the costs of the Presenter’s Legal Representation.

3. List of Witnesses. Fourteen days before the Hearing the Respondent must provide the Investigation Group, the Presenter of the Case, and the Church Court with a list of any additional Witnesses whom they have asked to attend the Hearing and provide copies of any evidence upon which they intend to rely.

3.1. Support for Witnesses. In submitting lists of witness the Presenter of the Case and the Respondent will indicate to the Church Court whether any steps need to be taken to assist the witnesses in giving evidence. For example, a vulnerable witness may appear via video link from another room.

3.2. New Evidence. Where new evidence comes to light during the Hearing, the Court hearing the case must decide whether the evidence materially changes the case. They may suspend the hearing to allow time for all parties to consider the new evidence.

3.3. Members of the Court. Any Witnesses who are members of the Court will not be entitled to sit as members of the Court at the Hearing.

3.4. Budgetary Provision. The Board of Trustees will allocate a budget for the expenses of the Witnesses attending the Hearing.

4. Continuance. It is competent for either party to ask the Kirk Session or Presbytery, up to seven days before the start of the case, for a continuance of the Hearing to allow more time for the preparation of the case. This may be required if additional Witnesses or evidence has been identified by the Respondent. Continuance will be granted at the discretion of Moderator and Clerk of the Kirk Session or Presbytery and will not be withheld unreasonably.

5. The Hearing.

5.1. Proceedings. On the date of the Disciplinary Hearing, both sides will be allowed to present their case, hear evidence from all Witnesses, and allow cross examination of the Witnesses.

5.1.1. The Presenter of the Case will present the report of the Investigation Group regarding the Complaint according to the provisions of Paragraph 2.1 above as required in each case.

5.1.2. The case of the Respondent will be presented according to the provisions of Paragraph 2.2 above.

5.2. Recording. The proceedings at the Hearing will be recorded. At the end of the proceedings all recordings will be securely stored by the Conduct and Complaints Committee.

5.3. Private Hearing. The Disciplinary Hearing will be conducted in private.

5.4. Public Announcement. The decision of the Disciplinary Hearing is public and will be communicated to the Church as a whole.

5.4.1. The Church Court, in consultation with the Free Church Communications Manager, will decide on any communication to the media or responses to requests for comment.

5.4.2. No member of a Church Court should discuss the matter with the media without the permission of the relevant Church Court.

6. Review. Where an Appeal, Dissent and Complaint or Request for Review is made, no public statement of the outcome will be made either within the Church or to the media until after the Higher Court has considered the case.

7. Solemn Assurance. All who are about to give evidence before a Kirk Session or Presbytery shall be required to give a solemn assurance before doing so that they will speak the truth, that they have no malicious motive and are not knowingly biased.

8. Closing Statements. The Presenter of the Case and the Respondent or their representatives will be entitled to make closing statements to the Kirk Session or Presbytery once all the evidence has been heard. After which point, they will be asked to leave the room while a decision is reached.

9. Hearing Regulations. The Principal Clerk, in consultation with Conduct and Complaints Committee, is empowered to prepare regulations on how a Hearing should be conducted, provided that such regulations shall be laid before and be subject to alteration, revocation, amendment or modification by the General Assembly or its Commission. These regulations will include rules of evidence, make provision for vulnerable Witnesses giving evidence, and give details on how evidence can be taken where a Witness is unable to attend the Hearing due to age, illness, or location.

10. Decisions. At the end of the Hearing the Kirk Session or Presbytery will reach a decision on the formal Charge through private discussion in accordance with the principles of evidence in Section C Paragraph 5. The Female Adviser and the Independent Adviser on Procedure will be present at this discussion. The decision will be reached by majority. 

10.1. Complex Cases. In complex cases, the Kirk Session or Presbytery may adjourn to give themselves time to consider their decision and shall appoint a date (within 7 days) for a future meeting where they will reach their decision.

10.2. The Record. The Kirk Session or Presbytery should record their decision along with the reasons for their decision. This will be an official minute of the Court.

10.3. Not-guilty Verdict. If the Respondent is found not guilty the reasons for this decision will be clearly stated and communicated within the wider Church – this is important for restoring the reputation of someone who has been wrongfully accused.

10.4. Guilty Verdict. If the Kirk Session or Presbytery find the Respondent guilty, they will then decide on the appropriate outcome. The outcomes available to the Court are outlined in Section C Paragraph 7.

10.4.1. Before deciding on the outcome, they will hear from the Respondent as to whether there are any mitigating circumstances and consider whether there has been aggravation.

10.4.2. It may be necessary to obtain a medical report or other evidence to support the existence of mitigating circumstances or aggravation. They may obtain victim impact statements.

10.5. A Final Decision. The decision of the Kirk Session or Presbytery will be final, unless an Appeal, Request for Review or a Dissent and Complaint is raised.

SECTION H – PROCEDURE IN CASES RELATING TO CONGREGATIONAL HEALTH

1. Investigation. Where the Triage Group concludes a matter relates to Congregational Health the Investigation Group will report on the matter to the Presbytery having responsibility for oversight of ministry in the area.

1.1. Presbytery. The Presbytery will appoint a Committee to consider the report of the Investigation Group and to carry out further investigation in seeking to resolve the situation. The Committee will be chaired by a member of the Presbytery.

1.2 Investigation Group. At least one member of the Investigation Group will be appointed to the Presbytery Committee.

2. Course of Action. The Presbytery will decide on an appropriate course of action. The Conduct and Complaints Committee will produce guidance outlining options available to Presbyteries, particularly with a view to deescalating the situation.

3. Support. Mediation may be provided for the Congregation, and other forms of support which are deemed appropriate, to try and restore harmony in the Congregation.

4. The Record. If the various steps to address the issues should fail, then the Presbytery must record in their minutes a statement of the facts, the steps taken by the Presbytery, and the results. 

5. A Hearing. Presbytery may decide at this point to proceed with a Hearing at Presbytery of the various parties. The Investigation Group will continue to provide support to Presbytery on how best to proceed.

5.1. The Finding. If at the Hearing, the Presbytery conclude that the ends of the ministry are not being served, and that the state of the Congregation is due to defects or mismanagement personal to the Minister, and/or may be due to the fault of any Office-bearers or members of the Congregation, they will record this in their minutes.

5.2. Improvement Plan. The Presbytery will consider whether any additional steps may be taken to improve the situation. The Presbytery should consult the Mission Board for support in preparing an improvement plan.

5.2.1. Where the Presbytery is able to put in place an Improvement Plan, they will communicate their recommendations to the Congregation, Office-bearers and Minister and provide support in implementing the Plan.

5.2.2. The Presbytery will review the situation six months after the implementation of the Improvement Plan.

5.3. Removal of Parties. Where the Presbytery see no possibility of improvement without the departure of either the Minister, any of the Office-bearers, or Members of the Congregation, they will initiate appropriate action to remove those parties from the Congregation.

5.3.1. The Minister. Where it appears the issues relate to defects or mismanagement on the part of the Minister (but which does not amount to a disciplinary offence), they will hold a further Hearing for the purpose of deciding whether the pastoral tie should be dissolved. The Minister will be present at the Hearing and will be given an opportunity to address the Presbytery on the issues.

5.3.1.1. If the Presbytery decide to dissolve the pastoral tie, they will inform the Principal Clerk and the CEO by extract of proceedings giving the reasons and requesting that the Minister’s name be added to the Roll of Ministers without Charge.

5.3.1.2. On the dissolution of the pastoral tie, the Minister will be entitled to six months stipend, or stipend until such time as they receive a call, whichever is sooner. If the Minister is within ten years of state pension age, has given at least ten years’ service to the Church, and chooses to retire, a request may be made to the Board of Trustees for additional financial support.

5.3.1.3. The Minister will not be expected to immediately leave the manse and the Presbytery, Congregation and Minister will agree how long the Minister and his family may continue to occupy the manse.

5.3.2. Officebearers. Where it is apparent that the issues relate to defects or mismanagement on the part of an Office-bearer, or Office-bearers, the Presbytery may remove the Office-bearer from office following a Hearing where the Office-bearer will be given the opportunity to address the Presbytery.

5.3.3. Members. Where it is apparent that the issues relate to a member or members of the Congregation, the Presbytery will consider what action is appropriate in each case. The members will be entitled to address the Presbytery on the matter before a decision is taken.

5.3.3.1. The Presbytery may consider an Admonition is appropriate in the circumstances of this case and the actions which have led to the current situation.

5.3.3.2. The Presbytery may order that they be relieved of all public functions entrusted to them in the Congregation.

5.3.3.3. The Presbytery may encourage the Member or Members to consider attending another Congregation in the interests of the gospel.

6. Disciplinary Offence. If at any time the members of Investigation Group become aware of evidence of a Disciplinary Offence on the part of anyone to whom this Act would apply, they will immediately refer the matter to the Chairman of The Conduct and Complaints Committee who will then proceed as in any other case of a Disciplinary Offence.

SECTION I – GLOSSARY OF TERMS

The following definitions shall apply within this Act:

1. Admonition means an exhortation to more careful and worthy conduct, accompanied by counselling against sin. It is the lightest form of Church censure.

2. Adviser means a Minister or Elder, selected from a list maintained by the Conduct and Complaints Committee, who acts as an Adviser to a Respondent in relation to Church law and procedure.

3. Assistant Clerk means an assistant to the Principal Clerk of the General Assembly.

4. Bullying means conduct amounting to offensive, threatening, abusive, malicious, intimidating, or insulting behaviour that may be an abuse or misuse of power, position or knowledge through means that undermine, humiliate, denigrate, or injure the person concerned and which is behaviour occurring in circumstances where it would appear to a reasonable individual that it would amount to bullying of that person.

5. Capability for Ministry means the ability of a Minister to fulfil the requirements of ministry. Capability for Ministry is usually regarding an issue over which they have no control. For example, if a person becomes unable to fulfil their ministry due to an illness or disability and adjustments or support cannot help. However, Capability for Ministry is not exclusively related to health.

6. Case to Answer means that there is sufficient evidence (in accordance with Section C. Paragraph 5) to prosecute the Respondent based on the report.

7. Church means the Free Church of Scotland.

8. Church Court means the Kirk Session, the Presbytery, the Commission of Assembly, and the General Assembly, as the case may be.

9. Citation means an order given by the Session Clerk or Presbytery Clerk for the Respondent, Complainant, and all Witnesses to appear at a Hearing of a Church Court.

10. Commission means a Commission of the General Assembly as appointed from time to time.

11. Complainant means the person making the Complaint.

12. Complaint means a notice of a potential Conduct Disciplinary Offence, or an allegation of Heresy against anyone to whom this Act applies (see Section C, Paragraph 3). A Complaint can also relate to a matter of Congregational Health. Where a Complaint relates to a decision of a Church Court, Deacons’ Court, or Finance Committee, the Complaint should proceed under existing review processes such as Appeal and Dissent and Complaint and will not be dealt with by the procedures in this Act.

13. Conduct and Complaints Committee means a committee established under Section C, Paragraph 1 of this Act. 

14. Conduct Disciplinary Offence means conduct which is either:

14.1. Declared contrary to, and censurable by, the Word of God, or          

14.2. Declared censurable by an Act or universal custom of the Church which is agreeable to the Word of God.

14.3. For the avoidance of doubt Harassment, Victimisation, and Bullying are censurable as they are contrary to, and censurable by, the Word of God and Contumacy is censurable as a Universal Custom of the Church.

15. Congregation means a congregation of the Free Church of Scotland.

16.Congregational Health means an issue in a Congregation where it is not always easy to identify the root cause – often we can observe the symptoms of an unhealthy situation, but investigation is required. Evidence of an issue of Congregational Health may include an undue falling away of attendance at public worship and/or undue withdrawal of financial support of the Congregation. It may also relate to a break down in the relationships in the Congregation.

17. Contumacy means the deliberate defiance of the authority of a Church Court. This includes:

17.1. A breach of an order or instruction of any Church Court (including failure to appear before a Church Court when duly cited).

17.2. A refusal to accept, or an attempt to subvert, the authority of any Church Court.

17.3. Breach of the confidentiality of a Church Court or Committee (this includes the issuing by any person of any form of statement about, or details concerning, an alleged offence, or participating in any interview or discussion with the media or publishing any material on social media regarding an alleged offence unless authorised to do so by the Court); and

17.4. Covert recording of Church Court proceedings.

18. Conflict of Interest means a connection between either the Complainant, or the Respondent, or any Witness involved in the process, and anyone acting at any stage under this Act, which could compromise that person’s judgment, decisions, or actions. For example, a family relationship or a personal friendship is be classed a connection that raises potential conflict.

19. Companion means the person who accompanies a Respondent, Complainant or Witness when they appear before any Church Court or Committee in the Church.

20. Deacon means an ordained Deacon as defined in Section C, Paragraph 3.5 of this Act.

21. Elder means an ordained Elder as defined in Section C, Paragraph 3.4 of this Act.

22. ETS means Edinburgh Theological Seminary.

23. General Assembly means the General Assembly of the Free Church of Scotland.

24. Harassment means unwanted physical, verbal, or non-verbal conduct which has the purpose or effect of violating the dignity of another person made in the image of God or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. In deciding whether conduct has that effect, consideration shall be given to the perception of that person, the other circumstances of the case and whether it is reasonable for the conduct to have the said effect.

25: Hearsay means information that an individual has heard from other people but does not know from their own experience whether or not it is true. An example would be a Witness telling you what they saw – in that case you can give evidence that they told you what they saw but not whether or not they actually did see it.

26: Heresy means a gross error of doctrine held and divisively maintained by someone within the Church which is in opposition to any substantial truth or truths grounded upon the Word of God and the system of doctrine found in the Westminster Confession of Faith. Where an error is pointed out to someone from Scripture, and they allow their thinking to be transformed by Scripture, they are not guilty of Heresy.

27: Investigation Group means an investigation Group appointed in accordance with Section D, Paragraph 10 of this Act.

28: Jurisdiction means the power to make decisions and judgements in relation to particular matters or individuals over which the Church Court has oversight as defined in Section C, Paragraph 4 of this Act.

29: Kirk Session means the kirk session of a Congregation.

30: Legal Representation means suitably professionally qualified individuals who can present a case on behalf of either the Presenter of the Case or the Respondent. This may include the involvement of solicitors and/or advocates.

31: Low-Level Complaint means a Complaint that has no serious purpose or value. Often a Low-Level Complaint is one about a matter so trivial or one so meritless on its face that investigation would be disproportionate in terms of time and cost. Someone who repeatedly brings Low-Level Complaints could themselves be subject to discipline procedures.

32: Malicious Witness means a Witness who has been shown to have deliberately given false testimony with the intention of causing harm to an individual or their reputation. Deuteronomy 19:16-21 makes clear a Malicious Witness should themselves be subject to discipline. However, it is not the case that every mistaken Witness is automatically malicious, and care should be taken not to discourage Complainants from bringing Complaints through the fear of discipline. The intention to cause harm and to act with malice requires to be proven to the same standard of evidence as any other discipline case.

33. Minister means an ordained minister as defined in Section C, Paragraph 3.1 of this Act.

34. Nominated Female Representative means a female member of the Conduct and Complaints Committee appointed by the Conduct and Complaints Committee to receive Complaints in accordance with Section C, Paragraph 1.3.4 of this Act.

35. Presbytery means the presbytery to which the Congregation of the Respondent belongs.

36. Presenter of the Case means a member of the Conduct and Complaints Committee who will serve as prosecutor to present the case before the Church Court. Usually this will be the Chairman or Vice-Chairman of the Committee. The Presenter of the Case must not have been involved in the Investigation Group. They will also review the report of the Investigation Group before it is presented to the Presbytery or Kirk Session.

37. Principal Clerk means the Principal Clerk of the General Assembly.

38. Rebuke means a more serious form of Admonition, declaring conduct sinful, and exhorting the Respondent to cease such sin in the future. It may be administered before the Kirk Session or Presbytery or before the Congregation.

39. Respondent means the person who is the subject of a Complaint.

40. Sist. To sist a case means to delay or suspend proceedings for a period. (See Section C, Paragraph 10)

41. Subjects of Discipline means the parties who are subject to investigation and discipline in terms of this Act as detailed in Section C, Paragraph 3.

42. Suspension from Office means a suspension of a person’s status as an office-bearer of a Congregation.  Suspension from Office may endure for a limited period of time or indefinitely.

43. Suspension of Privileges means denial of access to the Lord’s Supper and to be denied the Sacrament of Baptism for one’s children. Suspension of Privileges may endure for a limited period of time or indefinitely.  Restoration of Privileges is not automatic but depends on the Court being persuaded that the offender is truly penitent.

44. Temporary Suspension means suspension of a Respondent while awaiting the outcome of a Complaint process. For the avoidance of doubt, Temporary Suspension shall not constitute or form a part of any form of censure and is without prejudice to the matter under investigation. In the case of a Minister or staff member of ETS, the stipend will continue to be paid as long as he remains in his Congregation or appointment. Temporary Suspension is not required in every Complaint. It depends on the seriousness of the allegation and the need to protect the public.

45. Theological Committee means a body established from time to time to prepare a report on any theological question relevant to a charge of Heresy. The Theological Committee will be appointed by the Principal Clerk, the Principal of Edinburgh Theological Seminary, and the Chairman of the Conduct and Complaints Committee. They can appoint as many people as they deem appropriate. Those who are not Office-bearers in the Free Church of Scotland can be appointed as Advisers to the Committee.

46. Triage Group means a group formed under the authority of the Conduct and Complaints Committee in terms of Section D, Paragraph 5 of this Act.

47. Victimisation means subjecting another person to a detriment because that person has brought a Complaint under this Act, given evidence or information in connection with proceedings under this Act, or done any other thing for the purposes of or in connection with this Act, unless that person acted with malicious intent in so doing.

SECTION J – REPEALS

The General Assembly hereby repeal: 

  1. Act 1, 2008 (Class I) – Act anent interviewing Women, Children and Vulnerable Adults.
    1. Act 8, 1994 – Act anent the Practice – Supplement to Chapter on Discipline. 
    1. Act 1, 1990 (Class I) – Act anent Problem Ministries (Repealing Act 3, Class I, 1892). 
    1. Act 27, 1978 – Act anent Definitions for Inclusion in “The Practice”. 
    1. Act 28, 1978 – Act anent Statement of Principle in regard to Discipline. 
    1. Act 6, 1912 – Act anent Revision of Libels. 
    1. Act 14, 1860 – Act anent Revisal of Libels when a Presbytery are the Libellers.
    1. Act 15, 1860 – Act anent Revisal of Libels when any party or parties other than the Presbytery, are the Libellers. 
    1. Act 8, 1854 – Act anent Correction of a Libel by the General Assembly. 
    1. Act 4, 1853 – Act anent Complaints and Appeals not Sisting Procedure in Cases of Libel against a Minister. 
    1. Act 5, 1853 – Act anent Judging as to the Relevancy of a Libel against a Minister where the Presbytery are Libellers.
    1. Act 6, 1852 – Act anent The Form of Process in respect to a Minister ceasing to exercise his Functions after being served with a Libel.
    1. The ancient practice of an “Oath of Purgation” is also abolished as not having any Scriptural warrant.
  2. The General Assembly, noting the risks inherent in the Church’s disciplinary procedures, declare the provisions of the said Overture on Conduct, Complaints and Discipline of Office-bearers to be an Interim Act operative until the Assembly receives responses to the Overture.
  3. The General Assembly declare that all complaints raised prior to the 2023 General Assembly will continue to be processed under the terms of Act 2, Class 1, 2010 anent the Judicial Commission.