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Act 2, 2010 (II) (Class 1) – Act anent the appointment of a Judicial Commission (as amended by Act 2, 2020 – Act anent Amending Act 2, Class 1, 2010 regarding the Membership of the Judicial Commission)

The General Assembly recognise the risk of exposing the Church to criticism or legal action where procedure allows a Church Court to act as investigator, prosecutor, jury and judge, involving the same personnel in the initial investigation, the prosecution of the charges, the consideration of the evidence and the final verdict.

The General Assembly consider that the small size of the Free Church is liable to give rise to concerns and difficulties in the processing of cases, and in particular that objective, detached, and just procedure may not be achievable or clearly demonstrated.

The General Assembly note, in regard to the processing of accusations against Professors in the Free Church, that present legislation does not specify what should happen should it be decided after precognitions that there is no case to answer and that the role of the College Board in the process may involve a conflict of interests and may give rise to the independency of the Board being questioned in these circumstances.

Wherefore, the General Assembly, with the consent of Presbyteries enact and ordain:

A. The Judicial Commission

1. Composition

1.1 The Judicial Commission shall be appointed by the General Assembly on the recommendation in the first instance of the Committee to Review Disciplinary Procedures and thereafter on the recommendation of the Board of Trustees. The Judicial Commission shall be comprised of 24 members, two ministers and two elders from each of the home Presbyteries, appointed for a term of four years, renewable annually by the General Assembly for a subsequent four-year term. Those appointed shall be senior ministers and elders of the church with at least 10 years’ experience of active service. The General Assembly shall appoint one of the members of the Judicial Commission as Chairman.

1.2 The quorum for the Judicial Commission shall be 12 members. Members of the Judicial Commission who are also parties with an interest in any case which shall come before the Judicial Commission shall not sit as members of the Judicial Commission in these circumstances during any part of the proceedings.

2. Powers

2.1 The Judicial Commission shall have full powers to take up and dispose of any formal complaint against a Minister, Probationer, Elder, or Deacon, as shall be passed to them by any Presbytery of the church and shall have powers to pass sentence, always in accordance with the laws of the church. The Judicial Commission shall also have powers to issue formal citations to those accused and to all witnesses who may competently be cited. The Judicial Commission shall have access to the services of the Church’s Law Agent.

2.2 In unopposed findings of the Commission (ie where all parties acquiesce and no Appeal or Dissent and Complaint is lodged) wherein sentence has been passed upon an accused after due process, or else an accused has been acquitted, the Commission’s decision shall be regarded as a judicial decision and final, and the Commission shall report their finding to the General Assembly. Appeals from, or Dissents and Complaints against, any finding of the Commission, shall only be allowed on points of law or against severity of censure, but not against the finding itself, and shall be referred to the General Assembly. The Commission and parties appealing or dissenting shall be heard at the bar of the Assembly in the usual way. The Assembly’s decision shall be regarded as a judicial decision and final and shall be recorded in the minutes in these terms.

B. Investigative Procedure Applying to All Cases

1. Accusations against Elders and Deacons Accusations against an Elder or Deacon shall be investigated by their own Kirk Session. In investigating accusations against an Elder or Deacon the Kirk Session shall be required to follow the general principles of procedure set out in Chapter V, Parts I – III inclusive, of The Practice of the Free Church of Scotland.

2. Accusations against Ministers, Professors and Probationers Accusations against Ministers, Professors and Probationers shall be investigated by the Presbytery having jurisdiction over them at the time such accusations are made. In investigating accusations against Ministers, Professors and Probationers the Presbytery shall be required to follow the general principles of procedure set out in Chapter V, Parts I – IV inclusive, of The Practice of the Free Church of Scotland (hereafter referred to as “TP”).

3. Initial Inquiry

3.1 As a first step in dealing with all accusations of censurable conduct or a rumour to that effect concerning an Elder or Deacon brought to the notice of the Kirk Session, the Session shall appoint a Committee comprising the Minister (or Interim Moderator) and at least one elder to interview those making complaint or those thought to have knowledge of the facts underlying a rumour to ascertain what weight should be accorded to these and they shall report the outcome to the Session.

3.2 In regard to accusations of censurable conduct or a rumour to that effect brought to the notice of Presbytery against a Minister, Professor or Probationer, the Presbytery shall appoint a Committee comprising at least one minister and one elder to interview those making complaint or those thought to have knowledge of the facts underlying a rumour to ascertain what weight should be accorded to these and they shall report the outcome to the Presbytery.3.3 If the Session or Presbytery see cause they may terminate the inquiry at this stage and inform all parties involved accordingly, in which case the accuser shall then be informed that he or she must petition the relevant church Court should they be wish to take the matter further. Should the Session or Presbytery have reason to carry out further investigation this must be done formally by way of a Formal Investigation as detailed in 4. below.

4. Formal Investigation ( precognition) In proceeding to make formal investigation of allegations against an Elder, Deacon, Minister, Professor or Probationer the investigating Court shall have regard to all the relevant facts, and in particular:

(a) the bona fides of any person making an allegation that a disciplinary offence may have been committed;

(b) any representation made by the person who is the subject of the allegation; and

(c) the gravity of the alleged offence and in particular whether it be censurable according to Scripture and the laws of the church (Presbyteries should note Chapter V., Section IV, par. 2.5 of TP).

In all instances of proceeding to Formal Investigation the investigating Court shall:

(a) give details in writing to the accused of the substance of the complaint made against him and the nature of the evidence existing in support of the allegation and shall offer him the opportunity to make any answer thereto, but he shall not be obliged to do so, and may exercise the right to demand that he be formally charged with offensive conduct before agreeing to discuss the matter further with members of the investigating Court;

(b) make such arrangements as appear to be appropriate for the provision of pastoral support for the accused and his family, for the person or persons who made the allegation and for any witnesses who may be called to give evidence; and

(c) declare that the accused is meantime suspended from the duties of office. Even prior to the formulating of a charge, an Elder, Deacon, Minister, Professor or Probationer accused of censurable conduct should consider himself temporarily relieved of his duties. This suspension is not itself a censure, being merely a recognition of what is appropriate in the circumstances, and shall be termed an “administrative suspension” as distinct from any suspension involving censure. Kirk Sessions and Presbyteries must take care to minute all such distinctions carefully.

4.1 In all instances of Formal Investigation the investigating Court shall keep a Record Apart of the investigatory proceedings which shall be kept in retentis so that it may be produced should the need for formal process arise. The Record Apart shall comprise all evidence obtained by the Court including witness statements and the regular records of the investigating Court shall make reference to it as required.

4.2 If the Court find that the accusation is false or frivolous or that the rumour is groundless, or that there is no evidence capable of proving censurable conduct against the accused, unless this finding be remitted to the Presbytery or Judicial Commission by Dissent and Complaint, the enquiry shall be terminated and his temporary relief from his duties shall be recalled. If the Court find that there appear to be grounds for a formal charge to be drawn up against the accused, unless this finding be remitted to the Presbytery or Judicial Commission by or Dissent and Complaint, they must proceed by way of Libel as detailed in 4.3 below. As soon as the Formal Investigation is ended the accused shall be informed of the outcome.

4.3 In deciding to proceed with a formal charge after Formal Investigation the Kirk Session or Presbytery shall ensure that at least one of the following circumstances is present, without which no Court of the Church shall proceed to frame a Libel even to the extent of citing the person concerned.

(1) A written and signed complaint lodged by some person charging a minister with immoral conduct or heresy, providing some prima facie evidence. Since a scandal against an Elder, Deacon, Minister, Professor or Probationer, once raised, cannot be easily wiped off, the Kirk Session or Presbytery must exactly ponder by whose information and complaint it comes before them. And in judging the probability that would justify them in proceeding, they are called upon to weigh well the measure of credit due to the quarter from which an allegation of scandal proceeds;

(2) The lodging of a Private Libel by an accuser who asserts that attention to it is requisite for the due exercise of discipline. No Kirk Session or Presbytery shall receive a Private Libel unless the person lodging it is a Member of the Free Church of Scotland since the liability to censure referred to below can only competently apply to such as are Members of the Free Church. The Kirk Session or Presbytery with which a Private Libel is lodged shall declare that the accuser shall be liable to censure as a slanderer if he or she should fail to satisfy the relevant church Court of its truth being reasonably probable. Moreover the accuser shall be required to formally state that he or she accepts the said liability without which formal statement the Libel shall not be received. If the accuser allows this declaration and statement to be minuted, and he or she signs it, the church Court shall be obliged to proceed.

(3) The prevalence of a widespread rumour (fama clamosa) which lays a Kirk Session or Presbytery under an obligation to take action for its own vindication. Before beginning a process against an Elder, Deacon, Minister, Professor or Probationer on the ground of a fama clamosa involving serious scandal or manifest heresy, such as persistent opposition to the doctrine of the Confession of Faith, the Kirk Session or Presbytery must be careful to inquire into the rise, occasion, broachers and grounds of such a fama.

4.4 Whenever a Kirk Session arrives at a finding to proceed to formal process by Libel against an Elder or Deacon, or should this finding be subject to a Dissent and Complaint to the higher Court, the Session shall communicate the decision in writing to the accused, informing him that he ought to wait upon further notice from the Presbytery, as the matter must now be passed into their hands.

4.5 Whenever a Presbytery arrives at a finding to proceed to formal process by Libel against a Minister, Professor or Probationer, or should this finding be subject to a Dissent and Complaint to the higher Court, the Presbytery shall communicate the decision in writing to the accused, informing him that he ought to wait upon further notice from the Judicial Commission, as the matter must now be passed into their hands.

5. Dealing with a view to Confession If a Kirk Session or Presbytery find that there is good reason for entertaining or framing a Libel against an Elder, Deacon, Minister, Professor or Probationer subject to their jurisdiction, they shall firstly seek in the spirit of love and faithfulness to bring him to a confession. He may either deny the charge or, before committing himself at all by answering the inquiries of his brethren, he may demand that the accusations against him be set out formally. In either case the framing of a Libel shall be required.

C. Procedure to be followed in Processing a Libel

1. Formulating a Charge Whenever a Kirk Session or Presbytery, after due investigation in terms of 4. above, concludes that a formal process must be undertaken they shall proceed to formulate a record of charges against the accused in the form of a Libel as specified in 4.3 – 4.5 above. The Principal Clerk of Assembly shall make available a standard Form which must be used in all cases.

The Libel, forming a regular syllogism, must set forth the following:

Proposition 1 – the nature of the alleged offence, declaring its contrariety to the Word of God and the laws of the Church, and indicating the kind of consequences which ought to follow from it;

Proposition 2 – a summary of the evidence, whether from witnesses, documents or otherwise, incriminating the accused could be established, specifying what are believed to be the principal facts of the case, and particularising time, place and other circumstances relating to each alleged offence. This proposition may contain one or more counts of indictment;

Conclusion – the connection of Propositions 1 and 2 together and thereby arriving at the conclusion that the accused, as guilty of the offence mentioned in Proposition 1, ought to be subjected to the consequences indicated provided Proposition 2 be made good either by confession or by adequate evidence.

1.2 The Court which resolves to prosecute shall be responsible for processing the Libel. It is of great

importance that care be taken to frame the Libel with accuracy so as to avoid grounds for questioning its relevancy. In all cases which may lead to a Libel, the prosecuting party shall carefully examine the proposed evidence to ensure that a charge incapable of proof be not proceeded with. Such examination shall comply with Act I, Class I, 2008 (Act anent the interviewing of women, children and vulnerable adults). In every case, including that in which a Private Libel is insisted on, before a Libel is adopted it shall be submitted to the Law Agent of the Church in accordance with Act VI, 1912. A Libel shall be signed by the party or parties prosecuting, and a list of witnesses and documents adduced in support of the charge embodied in it shall be appended to it.

1.3 In addition to the Libel the Kirk Session or Presbytery, as also an accuser in the case of a Private Libel (see B 4.3 (2) above), in proceeding to process the case shall also:(a) draw up a list of the names and addresses of all witnesses to be adduced by the Session or Presbytery;

(b) provide a list of the productions to be put in evidence by the Kirk Session or Presbytery;

(c) forward the Libel together with the above-mentioned documents (a) and (b) to the Clerk of Presbytery or Judicial Commission as appropriate, with a request that they take up consideration of the case at their earliest opportunity;

(d) appoint representatives to prosecute the case before Presbytery or the Judicial Commission.

2. Hearing

2.1 The following procedure shall apply to the hearing of cases before Presbytery and/or Judicial Commission

2.2 Preliminary Requirements The Presbytery or Judicial Commission, having received notification in terms of C1.3 (c) above, shall take cognisance of all the documents relating to the case passed to them, ensuring that all required documents are present and in order. They shall not proceed further unless they are satisfied that all documents are present and in order and in the event that documents are missing or not in due form they shall inform the submitting Kirk Session or Presbytery of the same, requiring that they rectify all deficiencies before returning the documents to the relevant Clerk;

2.3 When all documents are present and in order the Presbytery or Judicial Commission shall:

(a) fix a date and place for the hearing of the case at the earliest opportunity, always allowing due time to all parties to make adequate preparations. The accused is entitled to a minimum of ten clear days’ notice of the date on which the Presbytery or Judicial Commission is to consider the relevancy of a Libel;

(b) serve upon the accused by recorded delivery post or by means of a person appointed by the Presbytery: (1) a copy of the Libel and the lists of all productions and witnesses; (2) the date appointed for the hearing; and (3) formal citation instructing the accused to be in attendance at the hearing upon the date fixed by the Presbytery or Judicial Commission;

(c) serve formal citation upon all witnesses listed at (b) above and belonging to the Free Church of Scotland, by recorded delivery post or by means of a person appointed by the Presbytery or Judicial Commission, instructing them to be in attendance at the hearing upon the date fixed. Witnesses listed but not belonging to the Free Church of Scotland cannot be cited but the Presbytery or Judicial Commission must inform them of the date appointed for the hearing and should aim to bring all moral suasion upon them to attend.

3. Conducting of Hearing

3.1 Challenge It shall be competent at the very commencement of formal proceedings by Presbytery or Judicial Commission for the accused to challenge the competency of witnesses on the grounds that they do not understand the charge or charges, or are known to be prejudiced against him. The accused must ensure that intimation of the grounds of his challenge be given to the Presbytery or Judicial Commission not later than twenty four hours before the hearing is due to begin, otherwise his challenge shall not be received. The basic requirements for a competent witness shall be (a) Capacity (that they are able to understand the facts to which they bear testimony; (b) Honesty (that they can be regarded as seriously aiming to provide objective testimony); and (c) Opportunity (that they were in a position to witness the facts they testify). Such witnesses as the Presbytery or Judicial Commission may deem to be not competent shall be dismissed. The Presbytery or Judicial Commission shall dispose of any such challenge immediately unless they decide that the matter cannot be decided without proof, in which case they shall adjourn proceedings until such time as the challenge may competently be disposed of.

3.2 Relevancy of a Libel In proceeding to take up consideration of a Libel the Presbytery or Judicial Commission shall firstly consider the relevancy of the Libel, which shall involve examination as to:

(1) Whether Proposition 1 (see C1 above) is true or not, that is, whether the offence or offences referred to are truly a subject of Church censure inferring the indicated penalty according to the Word of God and the standards of the Church; and(2) Whether the conclusion is fairly deducible or not from the premises, that is, whether the facts specified in Proposition 2 (see C. 1 above) really amount to the offence or offences charged in the major proposition.

3.3 Fresh Dealing toward Confession After a Libel against an Elder, Deacon, Minister or Probationer has been found relevant, the Presbytery or Judicial Commission shall deal with him anew to ascertain if he be willing to confess the truth of the charge or charges, in order to persuade him that since a wellfounded accusation against him exists it is his duty, both for his own sake and for the interests of Christ’s cause, to save his brethren or other parties the trouble of adducing proof against him either by witnesses or by documents.

3.4 Serving of a Libel If the Libel be adjudged to be relevant and the accused be not willing to confess the truth of the charge or charges therein, the Libel shall be served upon him by being formally placed in his hands. Once the resolution to serve the Libel as relevant has been agreed the accused becomes a party at the Bar.

3.5 Libel framed by other parties A Libel against an Elder or Deacon prepared and prosecuted by any other party than the Kirk Session shall be presented to the Kirk Session in the first instance who shall then pass it to the Presbytery. Such a Libel can only be served by authority of the Presbytery. Similarly when a Libel against a Minister or Probationer is prepared and prosecuted by any other party than the Presbytery, it shall be presented to the Presbytery and can only be served by authority of the Presbytery. For all such Libels the specifications listed in C1 – 3.4 above shall apply mutatis mutandis.

3.6 Sisting of Procedure No Appeal or Dissent and Complaint at any stage of Presbyterial action in a case of charge or fama which involves a Libel, or may lead to the necessity of serving a Libel against an Elder, Deacon, Minister or Probationer, shall have the effect of sisting procedure, until the Libel has both been served and found relevant (see Act IV, 1853).

3.7 Irrelevancy of Libel If Presbytery or Judicial Commission judge a Libel to be irrelevant the whole proceedings shall fall to the ground, unless the decision regarding irrelevancy is brought before the superior Court by appeal, complaint or reference. If the intervention of the superior Court is required, it may correct the irrelevancy and return the process to the Presbytery or Judicial Commission. If the decision of Presbytery or Judicial Commission, or in due course the Superior Court, is that only part of the Libel is irrelevant, the case may proceed with reference to the part which has been found relevant.

3.8 Taking of Proof If the accused persists in his denial of the charge or charges after the Libel has been found relevant, the Presbytery or Judicial Commission shall proceed to take the proof after hearing the Libel read over again and after hearing also any answers that may have been given in on the part of the accused. Each interested party shall be allowed to state their case fully. The whole procedure shall be carefully minuted in a Record Apart in case a Superior Court should order the whole or any part of it to be deleted or destroyed. The Record Apart shall be considered in the meantime as an integral part of the minutes of the Presbytery or Judicial Commission and shall be subject to examination according to the normal procedure.

3.9 Solemn Assurance All who are about to give evidence before a Presbytery or the Judicial Commission 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. Such solemn assurance shall be accepted as equivalent to an oath and all evidence received shall be given on that understanding.

3.10 Cross-examination An accused person shall have the right to cross-examine witnesses testifying against him, always subject to the agreement of the Presbytery or Judicial Commission as to the relevance of the questions in cross-examination.

3.11 Record of Testimony The testimony given by each witness and his or her answers to questions shall be accurately written down and shall subsequently be read and signed by the witness. To accomplish this, the Presbytery or Judicial Commission shall have authority to arrange for an audio recording of the proceedings, such recordings to be kept in secure possession by the Clerks until such time as the Presbytery or Judicial Commission may order them to be destroyed. The Judicial Commission may employ such professional services as may be required to create a transcription of the recordings, the costs to be included in the budgetary arrangements specified in (E) 2 below.

3.12 Deposition or Suspension after Confession or Proof If a Minister or Probationer confesses himself, or by Formal Process shall be found, guilty of any scandalous offence – such as flagrant or habitual intemperance, or violation of the Seventh Commandment – the Presbytery or Judicial Commission shall depose such a Minister instanter from his office, or shall deprive such a Probationer instanter of his licence, and shall deal with him otherwise as the ordinary discipline of the Church requires and as may be most for edification. In all instances of deposing a Minister from office the sentencing judicatory shall report this to the ensuing General Assembly. Where an offence by a Minister has not been very flagrant or aggravated, suspension from office sine die, that is, indefinitely as to time, may be considered sufficient censure, but such a suspension shall always be accompanied by a declaration loosing the suspended Minister from his Pastoral Charge. Even if he be reponed to the status of a Minister, he shall not be restored to that Charge.

3.13 Elder or Deacon not appearing If an accused Elder or Deacon, when duly cited, does not appear, and either leaves the locality, or shows himself otherwise contumacious, without any relevant excuse, his non-appearance shall be deemed to be a confession of guilt, and the judicatory which cited him shall suspend him sine die from office and from sealing ordinances.

3.14 Minister not appearing If an accused Minister, when duly cited, does not appear, and either leaves the locality, or shows himself otherwise contumacious, without any relevant excuse, his non-appearance shall be deemed to be a confession of guilt, and the judicatory which cited him shall either suspend him sine die from the duties of office and from sealing ordinances, or else recommend that the General Assembly depose him from office, as suits the gravity of the case. The General Assembly alone shall have authority to depose a Minister in his absence.

3.15 Resignation A Kirk Session or Presbytery shall not accept resignation of his office by an Elder, Deacon, Minister or Probationer unless they are satisfied that no charge of scandal or heresy can be reasonably brought against him.

(D) Legislation repealed and amended

1. The General Assembly hereby repeal Act XXIV, Class II, 1993.

2. The General Assembly amend Act VI, 1979, paragraph 5, to the extent that the following be deleted:

“and further, reserving the rights of parties, they are empowered to originate and prosecute before the Courts of the Church processes against any of the Professors for heresy or immorality, and to make enquiries for that purpose”.

3. The General Assembly amend Act XXIV, 2007, paragraph 1.6, to the extent that the following be deleted: “to take up consideration of allegations of heresy or immorality against any of the Professors (in accordance with the terms of Act VI, 1979, Act XXIV, 1993, and Act XV, 2004)”.

(E) Other

1. The General Assembly direct that proceedings of the Judicial Commission shall be clerked by the Assembly Clerks and that the records shall be submitted to the General Assembly for examination in the usual manner.

2. The General Assembly direct that a budget for sittings of the Judicial Commission shall be allocated to the Board of Trustees on the advice of the Chief Administrative Officer, and approved annually, in the same manner as the budgets of Committees and Boards of the Church. Parties called to appear before the Judicial Commission shall be liable to meet their own costs. Members of the Judicial Commission shall be entitled to claim expenses incurred in attending sittings of the Judicial Commission and meetings directly related to this in the same manner as claims by members of Committees and Boards of the Church.