The Clergy Discipline (Amendment) Rules 2021

Cross-examination of witnesses

6.—(1) After Rule 45 insert—

“Cross-examination of witnesses in person

45A.— (1) A respondent may not cross-examine a witness in person where the alleged misconduct is—

(a) conduct of a sexual nature towards the witness, or

(b) conduct towards the witness which took place when the witness was a child.

(2) A respondent may not cross-examine a witness in person where it appears to the tribunal—

(a) that the quality of evidence given by the witness would be likely to be diminished if the cross-examination were conducted by the respondent in person and would be likely to be improved if a direction under this Rule were to be given, and

(b) that it would not be contrary to the interests of justice to give such a direction.

(3) The Designated Officer may apply in writing to the Chair using form 8 in the Schedule for a direction that paragraph (2) applies in relation to the witness specified in the application; and the Designated Officer must send or deliver a copy of the application to the respondent at the same time as the application is made to the Chair.

(4) The respondent may, within 14 days of receiving a copy of an application under paragraph (3), make representations in writing to the Chair using form 9 in the Schedule; and the respondent must send or deliver a copy of the representations to the Designated Officer at the same time as the representations are made to the Chair.

(5) In determining an application under paragraph (3), the Chair must have regard to—

(a) any views expressed by the witness as to whether the witness is content to be cross-examined by the respondent in person,

(b) the nature of the questions likely to be asked, in light of the issues in the proceedings,

(c) whether there has been any relationship between the witness and the respondent and, if so, the nature of that relationship, and

(d) any other relevant circumstances.

(6) Where the Chair is satisfied that paragraph (1)(a) or (b) or (2) applies in relation to a witness, the Chair must—

(a) give a direction to that effect,

(b) invite the respondent to arrange for a legal representative to act for the purpose of cross-examining the witness in question, and

(c) give a direction that the respondent must notify the Registrar of Tribunals by the end of the period specified in the direction whether a legal representative is to act for the respondent by cross-examining the witness in question.

(7) If, by the end of the period specified under paragraph (6)(c), the respondent has not given the notification to the Registrar of Tribunals—

(a) the Chair must consider whether it is in the interests of justice for the witness to be cross-examined, and

(b) if the Chair considers that it is, the tribunal must appoint a legal representative to cross-examine the witness.

(8) A person appointed under paragraph (7)(b) is appointed to act in the interests of the respondent but is not responsible to the respondent.”

(2) In the Schedule to the 2005 Rules, in the heading for each of forms 8 and 9, for “(Rule 31)” substitute “(Rules 31 and 45A)”.