There are some differences in how ‘confession’ (as it is often called) features in the Church of England compared to other churches, including the Roman Catholic Church, where it is far more widespread. Both share in a common tradition, however, that anything said by the person making their confession in this context should be said with complete openness before God, and therefore with complete confidence that it will not be repeated or disclosed by the priest under any circumstances. This obligation on the part of the priest is known as the ‘seal of the confessional’.Footnote 1
In Principles of Christian Law a panel of experts, ‘selected for their expertise in the church law, order or polity of particular Christian churches’, offer a set of principles ‘for further discussion and reflection by the component churches and by others engaged in the ecumenical movement’.Footnote 2 Under the heading ‘The rites of the Church’ one of the principles reads: ‘The seal of the confessional is inviolable, save as may be provided by the law of a church.’Footnote 3
What follows seeks to evaluate the extent to which the seal of the confessional can truly be characterised as ‘inviolable’ when it comes to the admissibility of anything said or done in furtherance of private confession in secular criminal proceedings. The scope is necessarily limited and focuses on the Church of England (‘the Church’) and the criminal law of England and Wales in its analysis.
THE POSITION OF THE CHURCH
As Doe observes,
The law of the Church of England provides for both public and private confession. Baptized persons have a canonical duty to make general confession in the liturgical services of the church, followed by absolution which can be pronounced only by a priest.Footnote 4
In addition to this form of ‘liturgical confession’, an individual may make private confession to God in one of two ways: alone or in the presence of a priest in auricular confession.Footnote 5 Where the latter occurs, it must not be as a result of compulsion (by the priest) and no limit is placed on the frequency of confession sought by the person concerned.Footnote 6 Insofar as the apparent inviolability of the seal of the confessional is concerned, the revised Canons of the Church of England do not address the issue. Instead, the matter is dealt with by the proviso to Canon 113 of the Code of 1603, which provides:
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.
An analysis of the proviso to this Canon is important. First, on the face of it, the Canon appears to apply only where the penitent's action is genuine, namely ‘for the unburdening of his conscience, and to receive spiritual consolation and ease of mind’. Secondly, the sins which are confessed to the minister must be ‘secret and hidden’. Presumably, therefore, if what was confessed to the minister was already known to him or, arguably, others, it would not be ‘secret and hidden’. Thirdly, it would appear that the Canon is not binding upon the minister: ‘we do not in any way bind the said minister by this our Constitution’.Footnote 7 Fourthly, notwithstanding the aforementioned, the minister who hears the confession is not ‘at any time’ to reveal to ‘any person whatsoever’ any ‘crime or offence’ imparted to him during the course of the confession. Fifthly, an exception exists insofar as ‘they be such crimes as by the laws of this realm his own life may be called into question for concealing the same’. If this exception is to be interpreted literally, it appears to be a narrow one which allows the minister to reveal what he or she has been told if it is the type of crime concealment of which could itself constitute a criminal offence for which the lawful punishment is execution. Of course, whatever the position in 1603,Footnote 8 the death penalty has, in this jurisdiction, long since been abolished.Footnote 9 So it would appear that this exception is no longer of any practical significance save, perhaps, that it remains authority for the proposition that the seal of the confessional was not recognised as inviolable in 1603, as the Canon itself purported to provide a lawful circumstance in which it could be broken. Finally, breach of the Canon is under ‘pain of irregularity’; in modern parlance, this is likely to be construed as meaning that the minister would be liable to disciplinary proceedings.
In 1959 an Act of Convocation declared
That this House reaffirms as an essential principle of Church doctrine that if any person confess his secret and hidden sin to a priest for the unburdening of his conscience, and to receive spiritual consolation and absolution from him, such priest is strictly charged that he do not at any time reveal or make known to any person whatsoever any sin so committed to his trust and secrecy.
The Diocese of London observes that
This privilege has never been tested in a court. If a priest with knowledge received in the circumstances described in Canon 113 is summoned to give evidence in Court, he or she should consult the Diocesan Registrar, and should claim privilege, even though this might not be upheld.Footnote 10
It will be necessary to return to this ‘advice’ later. However, it is interesting to note, as Doe does, that the 1959 Convocation is in one sense narrower than Canon 113 in that it imports a requirement that the penitent is seeking ‘absolution’; Canon 113 does not mention absolution at all.Footnote 11 On the other hand, the 1959 Convocation is wider in scope as it refers to any ‘sin’ so committed to the minister's trust and secrecy, whereas Canon 113 refers to ‘any crime or offence so committed’. In any event, insofar as there exists a conflict between Canon 113 and the 1959 Convocation, it is submitted that the Canon must take priority, as Acts of Convocation are not legally binding.Footnote 12
‘Guidelines for the professional conduct of the clergy’
The Church has published ‘Guidelines for the professional conduct of the clergy’ (‘the Guidelines’), the primary aims of which are
i. To encourage the clergy – deacons, priests and bishops – to aspire to the highest possible standards of conduct throughout a lifetime of ministry;
ii. To identify certain basic minimum standards of behaviour;
iii. To seek to ensure the welfare and the protection of individuals and groups with whom the clergy work, and of the clergy and their families;
iv. To provide safe and effective boundaries for clerical ministry; and
v. To encourage personal and corporate ministerial development.Footnote 13
Article 3 of the Guidelines is headed ‘Reconciliation’. Article 3(5) provides:
A clear distinction must be made between pastoral conversations and a confession that is made in the context of the ministry of absolution. Where such a confession is to be made both the priest and the penitent should be clear that that is the case. If a penitent makes a confession with the intention of receiving absolution the priest is forbidden (by the unrepealed Proviso to Canon 113 of the Code of 1603) to reveal or make known to any person what has been confessed. This requirement of absolute confidentiality applies even after the death of the penitent.
Use of the words ‘forbidden’ and ‘absolute confidentiality’ appear to make the current position of the Church clear. Moreover, the Guidelines are explicit that in circumstances where the penitent has disclosed a serious crime, the obligation on the priest is to require the penitent to report his or her conduct to the police or other statutory authority. If the penitent refuses, the priest ‘should’ withhold absolution.Footnote 14 Breaking the seal is not an available option.Footnote 15
Report of the Seal of the Confessional working party
The Seal of the Confessional working party was set up in 2014 by the Archbishops’ Council with the aim of undertaking theological and legal work to enable the Archbishops’ Council and the House of Bishops to review the purpose and effect of the unrepealed proviso to Canon 113. The working party also considered whether the Canon should be amended and, in furtherance of these aims, prepared a report which was published in March 2018.Footnote 16
While the report makes for interesting reading, its legal analysis of the proviso to Canon 113 concluded that a priest's duty of confidentiality under it was an ‘absolute’ one.Footnote 17 The working party opined that:
It is the case that a priest of the Church of England is theoretically in a stronger position than any other claimant to a privileged status. All others rely on the ethics or rules of their profession; this includes Roman Catholic priests, because the Catholic Code of Canon Law has no legal status in England.Footnote 18
Be that as it may, the working party recognised the argument that ‘whilst that privilege might have existed in the past, the modern law of evidence had evolved without reference to it, and that it was, at the least, doubtful whether the privilege existed under the civil (as opposed to ecclesiastical) law’.Footnote 19 There was, however, no discussion of the statutory framework that applies in secular proceedings and so it is to that framework that we must now turn.
COMPETENCE AND COMPELLABILITY: THE STATUTORY FRAMEWORK
With the position of the Church in mind, it is necessary to look at the statutory framework that exists in England and Wales vis-à-vis the competence and compellability of individuals to appear before the secular criminal courts. To what extent do priests fall within this framework?
Competence
In this context, competence refers to the capability of an individual to appear before a criminal court as a witness. The matter is dealt with succinctly by virtue of section 53(1) of the Youth Justice and Criminal Evidence Act 1999: ‘At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence.’ There are two statutory exceptions to this rule. First, a person is not competent if it appears to the court that he or she is unable to understand questions put to him or her as a witness and unable to give answers to such questions which can be understood.Footnote 20 Secondly, a person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution.Footnote 21 Given the clear wording of section 53(1), it cannot sensibly be suggested that a priest is not competent to give evidence.
Compellability
The position of the Crown Prosecution Service (‘CPS’) is that:
A witness is compellable if he or she may lawfully be required to give evidence. Most witnesses who are competent can be compelled to give evidence. The only exception relates to spouses and civil partners who are only compellable to give evidence against their partner in limited circumstances.Footnote 22
The exception to which the CPS refers is contained within section 80 of the Police and Criminal Evidence Act 1984 and is not relevant for present purposes. Suffice it to note that there is no statutory exception for priests. Finally, the Crown Court has a power to issue a witness summons where the statutory test is satisfied.Footnote 23 A person who, without just excuse, disobeys a witness summons is guilty of contempt of court and may be punished accordingly.Footnote 24
Does there exist a conflict between Canon 113 and secular legislation? On the face of it, no, as nothing in Canon 113 prohibits a priest, per se, from being called as a witness in criminal proceedings. The only time a conflict might arise is where, having been called as a witness, the priest is asked questions about what took place under the seal of the confessional. Is the priest, in such circumstances, entitled, as a matter of law, to refuse to answer the questions put to him or her? As Hill observes ‘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.’Footnote 25 While it is unquestionable that Canons form part of the law of the land,Footnote 26 it is equally beyond doubt that, where a Canon contradicts the terms of a statute, the latter will prevail. As the Court of Appeal observed in R v Dibdin: ‘If there is anything in the Canons inconsistent with the statute law the Canons are so far invalid and of no force or effect.’Footnote 27 Accordingly, insofar as there may be a conflict between Canon 113 and the statutes regulating criminal proceedings, the latter will prevail.
THE DISCRETION TO EXCLUDE EVIDENCE
If it is accepted both that a priest is both a competent and compellable witness in criminal proceedings and that, to the extent that an absolute duty of confidentially exists under Canon 113, that duty cannot override statutory provisions to the contrary, is there any other basis to prevent anything said or done in furtherance of private confession being admitted in evidence? Hill suggests that ‘it is likely that a trial judge would exclude evidence of a confession made to a priest’.Footnote 28 He cites, without further discussion, sections 76, 78 and 82(3) of the Police and Criminal Evidence Act 1984 (‘PACE’). It is necessary to look at these provisions in a little more detail to ascertain whether or not Hill's reliance upon them is sound. In criminal proceedings, a ‘confession’ includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise.Footnote 29 Thus, the penitent who says to the priest during private confession ‘I murdered my husband’ has confessed – both spiritually and legally.
Section 76
Section 76(1) makes clear that a confession made by an accused person may be given in evidence against him or her insofar as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section. If, to continue with the above example, the penitent is charged with murder and denies it, then the confession made to the priest may, in principle, be given in evidence against him or her as it would certainly be considered relevant to a matter in issue, namely his or her guilt. Section 76(2) is only relevant where it is represented to the court that the confession was or may have been obtained either by oppression of the person who made it or in consequence of anything said or done that was likely, in the circumstances existing at the time, to render any such confession unreliable. In these circumstances, the court ‘shall not’ allow the confession to be given in evidence unless the prosecution proves beyond reasonable doubt that the confession was not so obtained. If the prosecution fails to do so, the confession must be excluded – there is no discretion.Footnote 30
‘Oppression’ is defined as including ‘torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture)’.Footnote 31 As to unreliability, the Court of Appeal in Re Proulx observed that
The abstract element involved also reflects the fact that the test is not whether the actual confession was untruthful or inaccurate. It is whether whatever was said or done was, in the circumstances existing at the time of the confession, likely to have rendered such a confession unreliable, whether or not it may be seen subsequently – with hindsight and in the light of all the material available at trial – that it did or did not actually do so.Footnote 32
If one reflects on the nature of private confession from the perspective of the Church, it is almost inconceivable that the circumstances envisaged in section 76 could arise in the context of the priest–penitent relationship. Ordinarily, one expects the penitent to have voluntarily attended confession in order to unburden his or her conscience and receive spiritual consolation (and absolution). He or she has not suffered oppression. Moreover, there is nothing, prima facie, which is likely to cast doubt upon the reliability of any such confession in these circumstances. On the contrary, a confession made to a priest is, owing to its very nature and purpose, likely to be considered highly reliable. Accordingly, it is difficult to see how, save perhaps in extraordinary circumstances, section 76 is relevant.
Section 78
Section 78(1) provides:
In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
This section can properly be characterised as a discretionary power such that the Court of Appeal will not lightly interfere with the exercise of a trial judge's discretion under this section.Footnote 33
Equally important, however, is to appreciate the test for exclusion. While a court must have regard to ‘all the circumstances’, the critical question is whether or not the admission of the evidence would have an adverse effect on the ‘fairness of the proceedings’. Accordingly, even where there has been impropriety in the obtaining of the evidence, its admission may not affect the fairness of the proceedings.Footnote 34 This point was re-emphasised by the Court of Appeal in R v Quinn, where Lord Lane CJ observed that
The function of the judge in exercising his discretion under section 78 of the Police and Criminal Evidence Act 1984 is to protect the fairness of the proceedings. Normally proceedings are fair if a jury hears all the relevant evidence which either side wishes to place before it …Footnote 35
Accordingly, if a criminal court was considering whether or not to exclude under this section evidence of a confession made to a priest, it is submitted that the objection of the priest – whether on canonical grounds or otherwise – would not be a relevant factor. While the court would have regard to the ‘circumstances’ in which the evidence was obtained, the critical factor remains the fairness of the proceedings. It is difficult to see how the fairness of the proceedings could be adversely affected by admitting evidence which was not only relevant but also highly likely to be probative.
Section 82(3)
Section 82(3) provides that: ‘Nothing in this Part of this Act shall prejudice any power of a court to exclude evidence (whether by preventing questions from being put or otherwise) at its discretion.’ This section therefore preserves the power of a court at common law to exclude evidence at its discretion. In reality, the common law power is unlikely to be used, given the ambit of the statutory provisions already discussed. However, in Noor Mohamed v The King (a pre-PACE case) Lord du Parcq, sitting in the Privy Council, opined that
It is right to add, however, that in all such cases the judge ought to consider whether the evidence which it is proposed to adduce is sufficiently substantial, having regard to the purpose to which it is professedly directed, to make it desirable in the interest of justice that it should be admitted. If, so far as that purpose is concerned, it can in the circumstances of the case have only trifling weight, the judge will be right to exclude it. To say this is not to confuse weight with admissibility. The distinction is plain, but cases must occur in which it would be unjust to admit evidence of a character gravely prejudicial to the accused even though there may be some tenuous ground for holding it technically admissible. The decision must then be left to the discretion and the sense of fairness of the judge.Footnote 36
This passage helpfully illustrates that, at common law, the concern of the court is directed at the interests of justice. This involves looking at the purpose for adducing the evidence in question, the weight which may be attached to it if it is admitted and any serious prejudicial effect to the accused as a result. Of course, evidence tendered by the prosecution is nearly always prejudicial to a defendant – that is why they are seeking to rely upon it. So that factor by itself is insufficient; the probative value of the evidence also needs to be considered. In the priest–penitent example alluded to above, it is difficult to conceive how a court, applying the common law approach, would arrive at a different conclusion than if it was considering an application under section 78 of PACE. The evidence would, for the reasons already given, be prima facie admissible. It is difficult to see how its prejudicial effect would outweigh its probative value or otherwise damage the interests of justice.
Accordingly, it is submitted that Hill's reliance upon the provisions contained within PACE is misplaced. Nothing in those provisions would permit a court to consider the issue of admissibility with reference to the position of the priest. Section 76 is aimed at ensuring that the prosecution cannot rely upon confession evidence which was, or may have been, obtained by oppression or in circumstances which are likely to render the confession unreliable. Section 78 is concerned with the fairness of the proceedings. Neither of these provisions assists the priest. It is also unlikely that the residual powers at common law would lead to a different conclusion.
A THORNY ISSUE
It seems that a conflict exists between the position of the Church, as expressed in the ‘Guidelines’, and the secular criminal law. The Diocese of London, as noted above, refers to the position of the priest in this regard as a privilege. But is this to confuse a legal privilege with a duty of confidence? As Bartlet observes:
Unlike privilege, confidentiality does not in itself exclude evidence from being admissible in court, and a court may compel disclosure where it considers it necessary for the fair disposal of a case … While it admits of exceptions, privilege offers far stronger protection against disclosure than confidentiality.Footnote 37
He goes on to argue that
Confidentiality is essential to a range of fiduciary relationships including the medical profession, the priesthood, a relationship between a journalist and his source and may give rise to equitable remedies. It is only in the case of the relationship between lawyer and client however where such confidences are exchanged in the context of a professional relationship that this is given the protection of privilege.Footnote 38
That the relationship between lawyer and client is ‘special’ in this regard is recognised by case law; indeed, save where it has been waived by the client, the privilege is regarded as ‘absolute’.Footnote 39 As for the priest–penitent relationship, as Elliott notes, ‘there is a paucity of clear authority on the matter, but such as there is is against the existence of any privilege’.Footnote 40
In ‘The seal of the confessional’, Bursell reviews, inter alia, a variety of case law from the Reformation to the nineteenth century which touches upon the issue.Footnote 41 The difficulty is that many of the cases to which he refers have unsatisfactory reports and do not purport to relate to sacramental confessions.Footnote 42 Of interest, however, despite also not dealing with a sacramental confession, is R v Griffin. Footnote 43 Bursell cites Baron Alderson in that case as having said that ‘conversations’ between a chaplain to a workhouse and a prisoner ‘ought not to be given in evidence’. Having noted the rationale for the privilege between lawyer and client, Baron Alderson provided that ‘The same principle applies to a person deprived of whose advice the prisoner would not have proper spiritual assistance. I do not lay this down as an absolute rule; but I think such evidence ought not to be given.’Footnote 44 Regardless of whether one finds the comparison compelling, the judge himself observed that he was not purporting to lay down an absolute rule; he appears, therefore, to be proffering no more than an opinion. An opinion which was not, it seems, followed in R v Hay, Footnote 45 where a Roman Catholic priest was committed for contempt after he declined to answer questions as to whom he had received a stolen watch from, saying that to do so would ‘violate the laws of the Church, as well as the natural laws’.Footnote 46
Another case cited by Bursell is R v Kent, Footnote 47 where a magistrate seemingly made no attempt to compel an Anglican clergyman who refused to disclose what had been said to him under the seal of the confessional. During a House of Lords debate, following publicity of the case in the newspapers, Lord Westbury, the then lord chancellor, is reported as saying:
There can be no doubt that in a suit or criminal proceedings 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 …Footnote 48
This response, though not legally authoritative, certainly conforms to the present-day understanding of the competence and compellability of witnesses as discussed above.
Following mention of an unreported case (where seemingly an Anglican priest was committed to prison for seven days for refusing to state what was disclosed to him during confession), Bursell concludes that ‘In no subsequent English case has the seal of the confessional been in issue, although on a number of occasions it has been the subject of adverse obiter dicta.’Footnote 49 It is unnecessary to repeat all of the obiter cases here. Suffice it to say that the observations of Lord Denning in Attorney-General v Mulholland appear to sum up judicial attitudes:
The only profession that I know which is given a privilege from disclosing information to a court of law is the legal profession and then it is not the privilege of the lawyer, but of the client. Take the clergyman, the banker or the medical man. None of these is entitled to refuse to answer when directed to by a judge. Let me not be mistaken. The judge will respect the confidences which each member of these honourable professions receives in the course of it, and will not direct him to answer unless not only it is relevant but also it is a proper and, indeed, necessary question in the course of justice to be put and answered. A judge is the person entrusted, on behalf of the community, to weigh these conflicting interests – to weigh on the one hand the respect due to confidence in the profession and on the other hand the ultimate interest of the community in justice being done.Footnote 50
Relevance, probative value and interests of justice: these are all concepts which have been discussed in light of the prevailing statutory provisions which regulate the admissibility of evidence in criminal proceedings.
At around the same time that Bursell's article was published, the Court of Appeal delivered its judgment in X Limited v Morgan-Grampian (Publishers) Limited, Footnote 51 an appeal brought by a journalist and his publishers against an order requiring the disclosure of the journalist's source to X so that they could institute proceedings against the source for breach of confidentiality. During the course of his judgment Lord Donaldson MR remarked that
It is sometimes said that the relationship between journalist and source is somehow akin to that between priest and penitent. Nothing could be further from the truth. The penitent comes to the priest for spiritual advice and guidance within a framework of a different and divine law. If the penitent is breaking confidences, he does so in circumstances in which he knows that the priest will make no use of that breached confidence and that there will be no further publication. This is the antithesis of a ‘confession’ to a journalist which is made with the express or implied intention that there should be wider publicity than the source can himself achieve. If any secular relationship is analogous to that between priest and penitent, it is that between lawyer and client. That is sanctioned, both expressly and impliedly by Parliament, in the public interest of enabling every citizen to obtain advice as to his legal rights, obligations and liabilities without fear of the consequences. For my part, I do not doubt that Parliament would, if necessary, confer the same immunity upon priests, albeit for different reasons, but that is unnecessary because the judges traditionally do not require priests to break the seal of the confessional.Footnote 52
It would have been interesting to see what Bursell would have made of the above, which appears to run counter to the other obiter comments which he analyses in his article. Although not deciding the point, Lord Donaldson does draw an analogy between the relationships of lawyer and client and priest and penitent, an analogy which Lord Denning did not accept in Attorney-General v Mulholland. Perhaps more interesting is his observation that, if required, Parliament would confer an immunity upon priests but that such a step is unnecessary because the judges ‘traditionally do not require priests to break the seal of the confessional’. Unfortunately, Lord Donaldson does not cite any authority for this latter proposition. Moreover, had he had regard to the case law, inconsistent as it is, his lordship might not have readily made such an observation.
The only other ‘post-Bursell’ case of interest happens to be a criminal one. In R v AR Footnote 53 the Court of Appeal was addressing an appeal against sentence in relation to indictments which contained various sexual offences against children. While reciting the facts, the court observed that ‘In July 2005 the appellant made a confession to a priest which resulted in the police being informed.’Footnote 54 Frustratingly, the court says no more about it, so it remains unclear as to the denomination of the priest, whether the confession was a sacramental one and how it came to be that the police were informed. In any event, the question of requiring the priest to attend court to give evidence did not arise because the appellant pleaded guilty.
CONCLUSIONS
Undoubtedly this is an area of the law fraught with conflict. The position of the Church, as set out in the ‘Guidelines’, is clear: the obligation on the priest is one of ‘absolute confidentiality’. This is sometimes mischaracterised as a ‘privilege’. Despite the analogy drawn by Lord Donaldson in X Limited, the weight of authority is against characterising the priest–penitent relationship as one susceptible to a claim of privilege: it is a relationship of confidence similar to that of doctor and patient but falls short of the protection afforded to lawyer and client. The review of the post-Reformation case law by Bursell demonstrates an inconsistent approach by the judiciary to the issue. However, an analysis of the legislative framework applicable to criminal trials firmly suggests that priests are both competent and compellable witnesses regarding anything said or done in furtherance of private confession, provided that such evidence is relevant, its probative value outweighs any prejudice caused to the defendant and it is in the interests of justice to admit it. Reliance placed by some authors on the powers of a court to exclude evidence under PACE is not apt when it comes to the priest–penitent relationship.
Absent an unequivocal judgment from the Supreme Court or Court of Appeal on the matter, the only way of ensuring that what has passed between priest and penitent during private confession is not liable to investigation during a criminal trial is to provide a statutory safeguard. This is the case (albeit to varying degrees) in all states of the USA.Footnote 55 However, there does not appear to be any appetite to adopt this course in England.Footnote 56 If anything, public pressure, in light of concerns over abuse of children by priests and others within organised religions, is likely to call for greater transparency and perhaps even mandatory reporting of crimes confessed to priests. Australia is in the process of seeking to standardise its laws requiring priests to report child abuse revealed to them during confession and making it a criminal offence to fail to do so.Footnote 57 This move is not supported by the Roman Catholic Church.Footnote 58
In England, priests remain in an impossible situation with the canon law and the Church opining one position and the secular legislation and case law another. If a priest is summoned to attend court and answer questions, he or she must do so. If they decline, they risk being committed for contempt. And what of the position of the penitent? Those who wish to truly unburden their conscience and seek spiritual consolation and absolution remain free to do so. Whether, as a consequence, they will have their words used against them in a criminal trial is a risk that they may or may not be prepared to take.
POSTSCRIPT
On 4 February 2020, the Family Division of the High Court gave judgment in Lancashire County Council v E & F and Others.Footnote 59 The judgment concerned an application by two elders of a Congregation of Jehovah's Witnesses to set aside a witness summons, requiring them to provide certain information, on grounds of a religious duty of confidentiality. The facts, in short, were that the mother of E had disclosed to the elders that E had made allegations of child abuse against her father. Some years later, one of the elders notified the police that E's mother had disclosed this to them. The judge at first instance required the local authority to file and serve statements from the elders dealing with a number of matters, including providing any records of interviews that they had had with the father. The elders declined to provide this information and so a witness summons was issued. Thereafter, some information was forthcoming from the elders, but they were not prepared to provide any information that had been communicated to them in the course of confidential spiritual counselling without the express consent of the individuals involved. It was argued on their behalf that the elders were under a spiritual duty not to disclose confidential religious communications and that, if such confidence were to be breached, individuals might no longer confide in their ministers.
Lieven J upheld the witness summons for a number of reasons. Of note is her ladyship's observation that:
there is no evidence that the material sought through the witness summons was in any sense a confession or akin to a confession. It appears that the allegation of sexual abuse came to the elders' attention because the Mother reported it, not because the Father confessed to the elders, or sought spiritual counselling. The elders then carried out some form of investigation and met with the Father, probably on more than one occasion. It is possible that at some point the Father ‘confessed’, but I have no evidence this was the case. In any event, the investigation cannot itself amount to a confession. Therefore, to the degree that there is a duty of confidentiality in relation to a confession, which I am prepared to assume on the basis of R v Hay, but not decide, it would not arise here.Footnote 60
There are a number of points to note. First, the case did not concern the Church, nor a sacramental confession. Secondly, on the facts, the court was not prepared to equate an investigation, conducted by the elders on account of what they had been told by the mother, as akin to the circumstances in which a confession is received. Thirdly, although the court did not decide the point, it characterised the relationship between ministers of religion and those who seek to confess as giving rise to a duty of confidentiality, not a privilege. In reaching this conclusion, the court relied upon a legal commentary accompanying the judgment in R v Hay which distinguished between things said in the confessional and things said or done outside it. Finally, even in cases where a duty of confidentiality might exist, Lieven J was not prepared to accept that the duty was an absolute one. Her ladyship went on to examine the relationship through the prism of Article 9 of the European Convention on Human Rights and noted that respect for the elders' religious beliefs, provided for by Article 9(1), is qualified by Article 9(2). She concluded that ‘It could not be more obvious that a freedom to manifest ones [sic] religious beliefs must give way to the need to protect a child from sexual abuse.’Footnote 61
The judgment does not advance the debate significantly for the reasons outlined in the paragraph above, and it is arguable that little can be read into the court's analysis, given that the case was not argued from the point of view of the Church. Nevertheless, it perhaps gives an insight as to the modern-day approach a court may take when dealing with these issues, which may, in the civil and family arena at least, come down to no more than a balancing exercise, on a case-by-case basis, as to whether disclosure should be ordered. In a criminal context, however, the approach of the courts must be in accordance with the applicable legislative framework as set out above.
