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The Seal of the Confessional and the Criminal Law of England and Wales
Published online by Cambridge University Press: 07 May 2020
Abstract
The seal of the confessional is often described as ‘inviolable’. The idea that what is said or done in furtherance of private confession may be subjected to scrutiny as part of litigation is often considered to be absurd. But what is the legal basis for such forthright rejection? The revised Canons of the Church of England do not address the issue at all; instead the matter falls to be covered by the unrepealed proviso to Canon 113 of the Code of 1603. In England and Wales there is no primary legislation which clearly and coherently deals with the question of the admissibility of matters said in private confession before courts and tribunals. Contrast that with the United States of America, where every single state has enacted statutory provisions which provide safeguards to admissibility, albeit to differing degrees. Recent developments in Australia have, conversely, involved the enactment of legislation making it a crime for a priest to withhold, in certain circumstances, matters said to him or her in the course of private confession. In 1990, Judge Bursell QC reviewed the existing case law on the subject (sparse though it is) and found it to be contradictory, with judgments appearing to be based upon personal opinions as opposed to legal analysis. There have been some interesting ‘post-Bursell’ developments, in terms of both legislation and case law, which are discussed in this article. In Ecclesiastical Law, Mark Hill QC suggests that ‘it is likely that a trial judge would exclude evidence of a confession made to a priest’. This article is essentially an analysis of that conclusion with a view to determining whether it is right to assume that, even if not adequately protected by legislation, things said or done in furtherance of private confession are likely to be excluded from secular criminal proceedings.
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References
1 ‘Interim statement: the seal of the confessional’, 8 May 2019, available at <https://www.churchofengland.org/sites/default/files/2019-05/Interim%20Statement%20Seal%20of%20the%20Confessional%20May%202019_0.pdf>, accessed 6 January 2020.
2 M Hill and N Doe, ‘Principles of Christian law’, (2017) 19 Ecc LJ 138–155, at 138 and 139.
3 Ibid, p 151.
4 Doe, N, The Legal Framework of the Church of England (Oxford, 1996), p 349CrossRefGoogle Scholar.
5 Ibid, p 350. See also Canon B29 of the Canons of the Church of England.
6 The Rector and Churchwardens of Capel St. Mary, Suffolk v Frank Victor Packard [1927] P 289, at 301.
7 Although see the observations of Colin Podmore, ‘The seal of the confessional in the Church of England: historical, legal and liturgical perspectives’, lecture for the Bishop of Richborough's Initial Ministerial Education Session, 14 November 2016, p 5, that the words ‘this constitution’ feature in the provisos of two other canons (Canons 69 and 78); available at <https://www.forwardinfaith.com/uploads/16_11_The_Seal_of_the_Confessional_in_the_Church_of_England.pdf>, accessed 10 February 2020. He concludes: ‘It looks as if the proviso may have been drafted hastily as an afterthought, probably after discussion with the ministers of the Crown, and for that reason was not very precisely drafted. The sense must be that the permission given to the clergy in the main body of the canon to report the crimes of their people to the Ordinary does not apply in the case of sins disclosed in the confessional.’
8 There is some debate over quite what the position was at this time. R Bursell, ‘The seal of the confessional’, (1990) 2 Ecc LJ 84–109 at 88, argues that the exception contained within the proviso was ‘new to the law and its meaning is obscure. Indeed it is possible that it has no meaning at all.’ He notes that, during the trial of Henry Garnet for complicity in the Gunpowder Plot, Sir Edward Coke, the then attorney-general, opined that the information that Garnet had come to learn ought to have been disclosed at common law – it being crimen laese Majestatis – though no authority is cited for this proposition.
9 See, in particular, Murder (Abolition of the Death Penalty) Act 1965, s1, and Crime and Disorder Act 1998, s 36.
10 Diocese of London, ‘Confidentiality’, available at <https://www.london.anglican.org/kb/confidentiality/>, accessed 6 January 2020. This advice appears to have been taken from ‘Clergy: confidentiality’ in Legal Opinions Concerning the Church of England (London, 2007), para 33.
11 Doe, Legal Framework, p 354, n 6.
12 Bland v Archdeacon of Cheltenham [1971] 3 WLR 706, at 713: Acts of Convocation are considered ‘guidelines for pastoral work, based on sound Anglican doctrine’.
13 Available at <https://www.churchofengland.org/more/policy-and-thinking/guidelines-professional-conduct-clergy/guidelines-professional-conduct>, accessed 6 January 2020.
14 Guideline 3(6).
15 Indeed, Guideline 3(8) goes on to provide: ‘However, confidentiality extends far beyond the specific situation of the ministry of absolution. People have to be able to trust clergy with their stories, their fears, and especially their confidences. The duty of confidentiality relating to the ministry of absolution sets a standard for our ministry against which all other instances should be set and judged. Those to whom we minister must know that they can depend upon us not to disclose information which they have shared with us in confidence.’
16 ‘Report of the Seal of the Confessional Working Party’, March 2018 available at <https://www.churchofengland.org/sites/default/files/2019-05/Seal%20of%20the%20Confessional%20-%20Full%20document%20-%20FINAL%20May%202019.pdf>, accessed 6 January 2020.
17 Ibid, para 3(8)(4).
18 Ibid, para 3(9)(7).
19 Ibid, para 3(10)(4).
20 Youth Justice and Criminal Evidence Act 1999, s 53(3).
21 Ibid, s 53(4).
22 Crown Prosecution Service, ‘Competence and compellability’, <https://www.cps.gov.uk/legal-guidance/competence-and-compellability>, accessed 6 January 2020. See also Blackstone's Criminal Practice 2019 (Oxford, 2018), p 2557: ‘The general rule as to compellability is that all competent witnesses are compellable.’
23 Criminal Procedure (Attendance of Witnesses) Act 1965, s 2: the Crown Court has the power to issue a witness summons where it is satisfied that ‘(a) a person is likely to be able to give evidence likely to be material evidence, or produce any document or thing likely to be material evidence, for the purpose of any criminal proceedings before the Crown Court, and (b) it is in the interests of justice to issue a summons under this section to secure the attendance of that person to give evidence or to produce the document or thing’.
24 Ibid, s 3. See also R v Harish Popat [2008] EWCA Crim 1921. As the learned authors of Blackstone's Criminal Practice observe, ‘The existence of “just excuse” will not be lightly inferred. Witnesses are required to submit even to very substantial inconvenience in their business and private lives’: Blackstone's Criminal Practice 2019, p 1857, n 24.
25 M Hill, Ecclesiastical Law (fourth edition, Oxford, 2018) p 156. Although compare this to the position taken in Doe, Legal Framework, p 355, n 6: ‘With regard to the Church of England … the prohibition against disclosure is not strictly and clearly binding and could not therefore be presented as a duty arising under the law of the land.’
26 In this regard see Hill, Ecclesiastical Law, p 13, n 27; and Doe, Legal Framework, p 73, n 6.
27 R v Dibdin [1910] P 57 at 120. See also Calvert v Gardiner and Others [2002] EWHC 1394 (QB).
28 Hill, Ecclesiastical Law, p 156, n 27.
29 Police and Criminal Evidence Act 1984, s 82(1).
30 See also R v Paris (1993) 97 Cr App R 99.
31 Police and Criminal Evidence Act 1984, s 76(8).
32 [2001] 1 All ER 57 at para 46.
33 See R v Jelen (1989) 90 Cr App R 456; R v Quinn [1995] 1 Cr App R 480; R v Dures [1997] 2 Cr App R 247.
34 As the Court of Appeal observed in R v Chalkley [1998] QB 848 at 874: ‘Just as the labelling of conduct as unlawful does not necessarily change its character for this purpose, nor does the application to it of the epithet “oppressive” automatically override the fundamental test of fairness in admission of evidence. Oppressive conduct, depending on its degree and/or its actual or possible effect, may or may not affect the fairness of admitting particular evidence. The test for the Judge was what was fair “having regard to all the circumstances”, and the single criterion for this Court is the safety of the convictions.’
35 R v Quinn [1990] Crim LR 581 at 582.
36 Noor Mohamed v The King [1949] AC 182 at para 192. See also R v Sang [1980] AC 402.
37 M Bartlet, ‘Mediation secrets “in the shadow of the law”’, (2015) 35 Civil Justice Quarterly 112–126 at 112 and 113.
38 Ibid, p 115.
39 Three Rivers DC v Bank of England (No6) [2005] 1 AC 610 at 646 (per Lord Scott of Foscote). See also R v Derby Magistrates Court Ex parte P [1996] 1 AC 487.
40 D Elliott, ‘An evidential privilege for priest–penitent communications’, (1995) 3 Ecc LJ 272–298 at 273. See also Blackstone's Criminal Practice 2019, p 2664: ‘In the case of communications between priest and penitent, there is slender authority in favour of the existence of a privilege.’
41 Bursell, ‘Seal of the confessional’, pp 84–109.
42 See, for example, R v Sparkes (c 1790) (cited in Du Barre v Livette (1791) Peake 108) and R v Radford (1823) (citied in argument in R v Gilham (1828) 1 Mood CC 186).
43 (1853) 6 Cox 219.
44 Cited in Bursell, ‘Seal of the confessional’, p 92.
45 (1860) 2 F & F 4.
46 Cited in Bursell, ‘Seal of the confessional’, p 92.
47 Ibid, p 93.
48 Cited in ibid.
49 Ibid, p 93.
50 Attorney-General v Mulholland [1963] 1 All ER 767 at 771.
51 [1990] 2 WLR. 421.
52 Ibid at 430–431.
53 [2009] EWCA Crim 1476.
54 Ibid at para 6.
55 For example, in Colorado see C R S. 13-90-107(1)(c): ‘A clergy member, minister, priest, or rabbi shall not be examined without both his or her consent and also the consent of the person making the confidential communication as to any confidential communication made to him or her in his or her professional capacity in the course of discipline expected by the religious body to which he or she belongs.’ An interesting aspect of the Colorado statute is that the privilege attaches to both the clergy member (etc) and the person making the confidential communication. Thus, to be examined in court on the issue would require the consent of both.
56 Although see the observations in this regard in ‘Report of the Seal of the Confessional Working Party’.
57 L Kelly, ‘Australia moves closer to compulsory child abuse reporting by priests’, 30 November 2019, <https://www.reuters.com/article/us-australia-abuse-lawmaking/australia-moves-closer-to-compulsory-child-abuse-reporting-by-priests-idUSKBN1Y401B>, accessed 6 January 2020.
58 B Kaye, ‘Catholic bishops in Australia reject compulsory abuse reporting, defying new laws’, 31 August 2018, <https://www.reuters.com/article/us-australia-abuse/catholic-church-in-australia-rejects-mandatory-reporting-of-child-abuse-discussed-in-confessional-idUSKCN1LG057?feedType=RSS&feedName=worldNews>, accessed 6 January 2020. See also Blake, G, ‘The confidentiality of confessions in the Anglican Church of Australia’, (2015) 17 Ecc LJ 46–52Google Scholar.
59 [2020] EWHC 182 Fam.
60 Ibid, para 39.
61 Ibid, para 45.