Articles 8 & 9 and the “seal of the confessional”: are communications between clergy and penitents privileged?

Short unhelpful answer – maybe “yes” but probably “no”…

Introduction

According to recent media reports, in R v Leighton [2013] EW Misc (CrownC) unreported – alas – a Jehovah’s Witness “ministerial servant”, one Gordon Leighton, has been convicted at Newcastle Crown Court on two charges of indecency with a child and six of indecent assault. He had admitted his guilt three years previously before the elders at his church when confronted with allegations about his conduct; however, when the police investigated the matter and asked three elders to make statements about Leighton’s confession they all refused and said that what they had heard was confidential.

They maintained that position at the Crown Court. Again according to media reports, their counsel, Richard Daniels, said on their behalf that they had a “duty to God” not to breach confidence and that “Privileged communication between members of the congregation and ministers is an absolute right and duty and there is no power in law to breach such a confidence”. The three had to be issued with witness summonses and were finally ordered to testify by HHJ Moreland, who said that they were in possession of relevant evidence about a point of real significance in the case and that her view was that the public interest was clearly in favour of that evidence being given.

Although it is always vastly preferable to have a proper law report, in a sense the detailed facts of the case are immaterial: what attracted my interest was counsel’s apparent contention that a communication between a minister of religion and a congregant attracts absolute privilege.

Rupert Bursell on the case-law

Rupert Bursell QC has analysed the issue of minister-penitent confidentiality at some length in ‘The Seal of the Confessional’ in (1990) 2 Ecclesiastical Law Journal  pp 84­–109. He notes the case of R v Hay (1860) 2 F & F 4 in which the defendant was charged with larceny of a watch. A Roman Catholic priest was called to give evidence because he had handed over the watch to the police; and when asked in court  from whom he had received the watch he declined to answer because he had “received it in connexion with the confessional”. The judge told him that he was not being asked to reveal anything told him in the confessional but “a simple fact – from whom did you receive that watch which you gave to the policeman?” The priest still declined to answer because to do so would implicate the person who gave him the watch, “violate the laws of the Church, as well as the natural laws” and lead to his own suspension for life for breach of canon law. He was committed for contempt.

Bursell also retails an unreported case of 1865, R v Kent, in which an Anglican priest refused to answer a question put to him by the magistrate during the committal of a woman for murder on the basis that what he knew was under the seal of the confessional. We know about the case because the incident gave rise to a question in the House of Lords, to which the Lord Chancellor, Lord Westbury, replied:

“There can be no doubt that in a suit or criminal proceeding a clergyman of the Church of England is not privileged so as to decline to answer a question which is put to him for the purposes of justice, on the ground that his answer would reveal something that has been made known to him in confession. A witness is compelled to answer every such question, and the law of England does not extend the privilege of refusing to answer to Roman Catholic clergymen who have obtained the information in confession from a person of their own persuasion.” [1]

And then there are the views of Jessel MR. In Anderson v Bank of British Columbia (1876) LR 2 ChD 644. Rejecting a submission that legal professional privilege attached to information prepared for a client in the course of litigation, he made the following more general statement, obiter:

“Our law has not extended that privilege, as some foreign laws have, to the medical profession, or to the sacerdotal profession … Again, in foreign countries where the Roman Catholic faith prevails, it is considered that the same principles ought to be extended to the confessional, and that it is desirable that a man should not be hampered in going to confession by the thought that either he or his priest may be compelled to disclose in a Court of Justice the substance of what passed in such communication. This, again, whether it is rational or irrational, is not recognised by our law. [at 650-651: emphasis added].”

In Wheeler v Le Marchant (1881) 17 ChD 675 Jessel MR reiterated that position:

“Communications made to a priest in the confessional on matters perhaps considered by the penitent to be more important even than his life or his fortune, are not protected” [at 681].

Children and vulnerable persons legislation in Ireland

S 2(1) of the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Act 2012 created the offence of failing without reasonable excuse to disclose to the Garda Síochána as soon as practicable any information that the defendant knew or believed might be material to the prosecution of an offence committed by another person against a child. During proceedings in the Oireachtas on the Bill there was what can only be described as a major row about whether or not clergy would be prosecuted under s 2(1) if they failed to inform the Garda should someone admit to such an offence in the confessional. In the end, the Government finessed the issue; and s 2(4) of the Act as published states that the section

“… is without prejudice to any right or privilege that may arise in any criminal proceedings by virtue of any rule of law or other enactment entitling a person to refuse to disclose information”.

During the second stage debate in the Seanad the Minister for Justice and Equality, Alan Shatter, said that the purpose of s 2(4) was

“… to allow the courts to use their normal discretion in considering issues of privilege. There has been much media comment suggesting the Bill has an effect on the ‘seal of confession’ or sacerdotal privilege. As is the position with regard to the 1998 Act, there are no defences in this legislation which would specially apply to information received in the confessional box, nor is there a specific provision relating to the confessional. It will continue to be a matter for a court before which a person is prosecuted to determine whether there is a particular privilege or whether it applies in the circumstances of a particular case”.

In short, the courts would have to decide individual cases on the facts.

Halsbury and Mark Hill’s Ecclesiastical Law

Returning to England and Wales, the current (2011) edition of volume 34 of Halsbury, on ecclesiastical law, states at p 813 that

“The obligation of a priest to observe strict secrecy concerning what is communicated to him in the course of a private confession is enjoined by ecclesiastical authority [ie by canon 113 of the Canons Ecclesiastical 1603/04 which remains unrepealed]; it seems unlikely that the courts would recognise such a communication as belonging to the category of privileged communications, but this remains uncertain”.

Mark Hill QC points out in the third edition of his Ecclesiastical Law (OUP 2007) at pp 179–80 that a priest who discloses matters communicated in the course of a private confession commits a canonical offence (and that applies equally to Anglican and to Roman Catholic priests); however, it is uncertain whether or not a secular court would consider such communications privileged and allow a priest to refuse to answer questions relating to what s/he had heard in the confessional. Further, he notes that in its 11th Report (1972) at paras 273, 274 the Criminal Law Revision Committee declined to recommend that priest-penitent communications should be privileged.

He suggests that in criminal proceedings it is likely that a trial judge would exercise the discretion granted by the Police and Criminal Evidence Act 1984 ss 76,78 & 82(3) and exclude evidence of a confession made to a priest. The penitent, and arguably the Church in a representative capacity, might be entitled to seek a quia timet injunction to prevent a priest from communicating information imparted during a confession and that injunctive relief was more likely to be granted than before as a result of the Human Rights Act 1998, the express terms of Article 8 ECHR (private and family life) and “the emergent torts involving invasion of privacy and confidentiality”. Moreover, he points out at p 180 that “An Anglican priest is in a different position from a priest of another denomination, since the duty of confidentiality which attaches to him is part of the law of the land”.

Conclusion

In secular legal terms the internal rules of other religious bodies are not on all fours with the canon law of the C of E. The Roman Catholic Codex Iuris Canonici 1983 might well be cited in a case involving a dispute within that Church; and the Supreme Court recently paid great attention to the Constitution and Standing Orders of the Methodist Church in deciding President of the Methodist Conference v Preston [2013] UKSC 29. But that is not to say that either has the force of law of itself; rather, the members of a voluntary organisation agree as a consequence of their membership to be bound by the organisation’s rules. The same considerations would apply to the members of the MCC or of a local allotment society.

Though Hill suggests that “In practical terms … it would be surprising if the secular courts differentiated between the evidential effects of the sacrament of penance purely on the basis of the priest’s denomination”, I suspect that whether or not a court would be prepared to cede privilege to a confidential communication between a minister of religion (certainly in the case of a non-C of E one) and a congregant is a question that would be sensitive both to the facts and to the gravity of the alleged offence.

And if there is an Article 8 issue here, might it not be rebuttable on the grounds that a refusal by the courts to accept a plea of privilege in relation to an admission of a serious offence such as murder, rape, GBH or indecent assault was “for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”? After all, victims of crime also have rights.

Moreover, the fact that the Criminal Law Revision Committee looked at the matter and declined to recommend that privilege should be conferred on such communications by statute gives support to the view either that no such privilege currently exists at common law or that if it does in fact exist its extent is extremely uncertain.

What is certain, however, is that in the circumstances of R v Leighton HHJ Moreland was simply having none of it. In fairness to counsel, the media reports of Mr Daniels’s claim that “privileged communication between members of the congregation and ministers is an absolute right and duty” were probably a massive journalistic oversimplification of his argument. Put so baldly, it looks like something of an overstatement when, in reality, the situation is much more complicated than that.

For another view see AK Thompson: Religious Confession Privilege and the Common Law (Martinus Nijhoff / Brill Academic 2011).

Cite this article as: Frank Cranmer, "Articles 8 & 9 and the “seal of the confessional”: are communications between clergy and penitents privileged?" in Law & Religion UK, 23 July 2013, http://www.lawandreligionuk.com/2013/07/23/articles-8-9-and-the-seal-of-the-confessional-are-communications-between-clergy-and-penitents-privileged/


[1] Parl Deb series 3 vol 179 (House of Lords) 12 May 1865.

9 thoughts on “Articles 8 & 9 and the “seal of the confessional”: are communications between clergy and penitents privileged?

  1. This question arose in an (off-topic) discussion during a recent tutorial for my OU LLB studies. A fellow-student, a barristers’ clerk, understood from a case in his chambers that privilege did extend to the confessional. I was convinced it did not (on the mistaken belief that the concept of private priestly confession would have been one of the Catholic traditions dropped at the time of the Reformation). But I went away and researched around the issue and discovered the un-repealed Canon 113 of 1604.

    Isn’t the correct legal position that the seal of the confessional isn’t protected in common law; but that C of E priests are unlike ministers of other denominations or faiths because they are bound by Canon 113 (the law of the land) that:

    “Provided always, that if any man confess his secret and hidden sins to the minister, for the unburdening of his conscience, and to receive spiritual consolation and ease of mind from him; we do not in any way bind the said minister by this our Constitution, but do straitly charge and admonish him, that he do not at any time reveal and make known to any person whatsoever any crime or offence so committed to his trust and secrecy (except they be such crimes as by the laws of this realm his own life may be called into question for concealing the same), under pain of irregularity.”

    It would be interesting to see what would happen if the Supreme Court had to rule on the question – not least because in any judgment they would have to set out the legal status of the Church of England Canons today.

    • Indeed: and in the extract I quoted from Halsbury I inserted a reference to Canon 113 of 1604/05 with that in mind.

      I assume that if, in extremis, a priest of the C of E refused to divulge something revealed during a formal confession and the court took the view that that refusal was a matter for the ecclesiastical authorities and insisted on the question being answered, that priest might end up being committed for contempt.

      As you imply, in practical terms the law is evidently unclear. The fact that Lord Chancellor Westbury was speaking in the House of Lords and not from the bench in a judicial capacity must presumably mean that his words do not have judicial authority; equally, however, they must be an accurate statement of the law as he understood it, some 250 years after Canon 113 was promulged.

  2. One question that arises, if the question privilege is a matter to be determined on a case by case basis, is by what criteria will the courts make such a determination? The Supreme Court of Canada has addressed just that question in R. v. Gruenke [1991] 3 SCR 263.

    The bottom line is that the Court adopted the Wigmore Criteria (q.v.) to apply to any claim of priest-penitent privilege, and explicitly without regard to denomination or to whether or not the “priest” in question is formally ordained.

    Wigmore’s criteria are:

    (1) the communications must originate in a confidence that they will not be disclosed;
    (2) this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties;
    (3) the relation must be one which in the opinion of the community ought to be sedulously fostered; and
    (4) the injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

    Wigmore himself, incidentally, concluded that the priest-penitent privilege always satisfies his criteria.

  3. Absent a particular case in mind or an actual situation, I nonetheless find myself hoping that I would be willing to be gaoled for contempt rather than break the seal of the confessional. I imagine I’m not alone among Anglican clergy.

  4. I doubt the Supreme Court of the UK would find that there was a religious confession privilege at common law despite historical evidence to the contrary. In part that would be because they would say the public interest in a court having access to all the evidence would trump the public interest in protecting religious confidentiality or even in protecting the free exercise or manifestation of religion more generally.

    Judges are more familiar with client legal privilege. Some have said, this is now so well established that it is a substantive human right and not just a rule of evidence. It is an element of a fair trial. The public interest in the administration of justice requires that a client be able to tell his lawyer everything without risk of disclosure. The reason why that ‘freedom to tell’ assists the administration of justice has never been adequately articulated. Bentham was famously critical of all privileges (except religious confession privilege) in the early 19th century. If the administration of justice is assisted because a well informed lawyer will be able to tell his client when he should plead guilty which will save the court time and trouble, then the logic transfers into the religious context. Most religious counsellors will counsel sinners who have broken the law of the land, that repentance requires restitution including paying the price the law of the land requires. But is there more to the public interest supporting client legal privilege than that – and if so, does that other supportive logic not transfer in the case of religious confession privilege?

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