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An Evidential Privilege for Priest-Penitent Communications

Published online by Cambridge University Press:  31 July 2008

D. W. Elliott
D. W. Elliott
Affiliation:
Emeritus Professor of Law in the University of Newcastle upon Tyne
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If a person has been duly sworn as a witness in a judicial proceeding, he must answer any relevant question put to him. If he does not do so, he risks being held by the judge to be in contempt of court and punished by being imprisoned or fined. The fact that the witness finds it repugnant to his sense of honour to give an answer which will break a confidence reposed in him by someone else does not excuse him from his duty. The public interest in the disclosure of all matters relevant to a judicial proceeding is regarded as so important that it prevails over any considerations of private honour between individuals. It is simply no answer for a witness to say ‘I was told this in confidence by a person who trusted me to keep his confidence’. This general attitude of English law has obvious and unwelcome implications for clergymen. A priest or clergyman will in the course of his ministry often receive private information from members of his flock, which his priestly duty requires him to keep secret. He might well be obliged to choose between disregarding his priestly duty or suffering legal penalties, which may be severe. Moreover, the prospect of having to submit him to this invidious choice will be repugnant to the judge; and the fact of such a choice being put, and of the clergyman being sent to gaol for doing his duty, is bound to cause dismay in large sections of the public. The possibility of this conflict of church and state actually happening is extremely small, but the fact that it exists at all is dismaying to many persons.

Type
Research Article
Information
Ecclesiastical Law Journal , Volume 3 , Issue 16 , winter 1995 , pp. 272 - 298
Copyright
Copyright © Ecclesiastical Law Society 1995

References

1. See Phipson on Evidence, 14 ed (1990) Chap 20, Sect 4.Google Scholar

2. See, generally, Gurry, , Breach of Confidence, 1984.Google Scholar

3. Alfred Crompton Amusement Machines v Customs & Excise Commissioners (No 2) [1974] A.C. 405, 433, 434. (H.L.)Google Scholar; D. v N.S.P.C.C. [1978] A.C.171, 218, 230, 237, 242; and see Wigmore, on Evidence (McNaughton Revision 1961), Vol VIII para 2285.Google Scholar

4. D. v N.S.P.C.C, supra, per Lord Simon at p.231.

5. See Cross, on Evidence (1990 Cross & Tapper) p. 446.Google Scholar

6. D. v N.S.P.C.C, supra; British Steel Corporation v Granada TV [1981] A.C. 1096 (H.L.)Google Scholar

7. Civil Evidence Act 1968, S.15.

8. Contempt of Court Act 1981, S. 10.

9. Except as a convenient shorthand, this expression is of course inadequate, in failing to cover relationships other than that between a confessor and a penitent making to him a sacramental confession under the discipline imposed on both parties by their church. The discussion following will cover other less strictly defined relationships between clergyman and layman, and a wider range of statements than those made in the course of a sacramental confession.

10. Wheeler v Le Marchant (1881) 17 Ch, D 675, 681 (Jessel M.R.)Google Scholar; Normanshaw v Normanshaw (1893) 69 L.T. 468 (Jeune P.)Google Scholar; McTaggart v McTaggart [1949] P. 94, 97 (Denning M.R.)Google Scholar; Goddard v Nationwide Building Society [1987] Q.B. 670Google Scholar. 685 (Nourse L.J. Consistent with these dicta at Court of Appeal level, there is the decision in Pais v Pais [1971] P. 119 (Baker J.)Google Scholar. To the contrary, there are (equivocal) trial rulings in favour of the privilege in R. v Griffin (1853) 6 Cox 219 and R. v Hay (1860) 2 F & F 4. An exhaustive account of the English and Irish cases will be found in in Bursell, ‘The Seal of the Confessional’ (1990) 2 Ecc.L.J. 84, 87–97Google Scholar. In the Irish case of Cook v Carroll [1945] Ir.R. 517. 519–521, it was said that there was a privilege (belonging to the priest, not the penitent), but it was acknowledged that English judicial opinion was uniformly against its existence. Courts in other common law jurisdictions, after thorough review of the English position, have concluded that, in the absence of statute, no privilege exists: see R. v. Church of Scientology of Toronto & Zaharia (1987) 31 C.C.C. (3rd) 449Google Scholar; R. v Gruenke (1991) 67 C.C.C. (3rd) 289 (Canada) and Mullen v U.S. 263 F. (2nd) (1958) (District of Columbia).

11. Stephen, , Digest of the Law of Evidence, 12 ed (1948) p.220Google Scholar; Cross, on Evidence (1990, Cross & Tapper) p.447Google Scholar; Phipson, on Evidence, 14 ed (1990) para. 20–13Google Scholar; Halsbury's, Laws of England (Hailsham ed 1976) Vol 17, para. 237Google Scholar; Wigmore, on Evidence (McNaughton Revision 1961) Vol VIII, para 2394Google Scholar; McNicol, , Law of Privilege (1992) p. 324Google Scholar; Robilliard, , Religion and the Law (1984), p. 122Google Scholar; Nokes, , ‘Professional Privilege’ (1950) 66 L.Q.R. 88, 100.Google Scholar

12. Law Reform Committee, 16th Report (Privilege in Civil Proceedings (1967), Cmnd 3472, para 46; Criminal Law Revision Committee, 11th Report (Evidence: General 1972) Cmnd. 4991, para 272; Australian Law Reform Commission, (hereafter A.L.R.C.) Report No 26 (Interim) (Evidence 1985) Vol 2 para. 205.

13. Op.cit., f. n. 11.

14. See Nokes, op.cit., f.n.11.

15. Bursell, op.cit., f.n.10,108, 109. See also Moore's, Introduction to English Canon Law, 2 ed. (1985 E. Garth Moore & Timothy Briden) 100.Google Scholar

16. Rules of Supreme Court, Order 24: see Science Research Council v Nasse [1980] A.C. 1028 (H.L.).

17. Conway v Rimmer [1968] A.C. 910 (H.L)Google Scholar; Burmah Oil v Bank of England [1980] A.C. 1090 (H.L.).Google Scholar

18. Perhaps if he were a prison chaplain, the Home Secretary might claim public interest immunity in respect of statements made to him by prisoners.

19. E.g. British Steel v Granada Television [1991] A.C.1096.Google Scholar

20. Privilege in Civil Proceedings (1967) Cmnd, 3472, para 1.Google Scholar

21. Evidence (General) (1972) Cmnd. 4991, para. 275.Google Scholar

22. A-G v Clough [1963] 1 Q.B.773; A-G v Mulholland [1963] 2 Q.B. 477.

23. [1978] A.C. 171.

24. At p.227G. Lord Kilbrandon merely stated that he concurred with Lord Hailsham's speech; Lord Diplock, in a reasoned speech, did not advert to the matter.

25. At pp 244H, 245B.

26. He continued: ‘(II) But where (i) a confidential relationship exists … and (ii) disclosure would be in breach of some ethical or social value involving the public interest, the court has a discretion to uphold a refusal to disclose relevant evidence provided it considers that, on balance, the public interest would be better served by excluding such evidence’, but following passages make clear that the public interest he is referring to is that protected by public interest immunity. The case itself was concerned with public interest immunity. See also Lord Simon at p. 240, who states categorically that ‘weighing’ is confined to claims for public interest immunity.

27. At p. 239 B-H.

28. At p. 240B.

29. However, since no hearsay would be involved if X himself gave evidence, he could be asked if he had not made such a confession to a priest. There would no question of protecting X from answering by discretion; the need to place no barriers in the way of evidence which materially helps to avoid an unjust conviction, which is strong enough to override even established privileges (see Marks v Beyfus (1890) 25 Q.B.D. 494Google Scholar; R v Barton [1973] 1 W.L.R. 115), would be decisive in favour of the defence. If X denied making the confession, the priest could be called to contradict him: Criminal Procedure Act 1865, SS 3,4. The priest would not be protected from answering for the same reason. The priest's evidence would serve only to depreciate X's credit as a witness; being hearsay, it has no bearing on the accused's guilt: R. v White (1922) 12 Cr. App. R 60; R. v Golder [1960] 3 All E.R. 457.

30. [1980] A.C. 402.

31. The common law definition of involuntariness was exceedingly narrow and technical: see Ibrahim v R. [1914] A.C. 599.

32. The way in which the discretion was to be exercised was before the passing of Police & Criminal Evidence Act 1984 codified in what were described as the Judges Rules.

33. (1828) 3 Car. & P. 518.

34. R. v Gilham (1828) 1 Moo. 186, a decision of the Court for Crown Cases Reserved, did not decide that priests have no privilege, but that religious exhortations by a priest to confess sins, even though prolongued, were not ‘inducements’ of the sort which before the Act of 1984 rendered a confession ‘involuntary’ and therefore inadmissible. Gilham is indeed strong authority sub silentio against the discretion to disallow evidence which breaks the seal. The prisoner, accused of murder, had private conversations with the gaol chaplain lasting over several days, and the clergyman gave lengthy evidence of how his strong exhortations at length produced a confession of the sin of murder. The reported judgment of a strong court was a one-line holding that the confession was rightly received at the trial. However, the elaborate and wide-ranging arguments of counsel on both sides made no mention of any discretion in the judge to disallow the chaplain's evidence, but concentrated on the legal position. If there were such a discretion, the case was pre-eminently one where it would have been exercised, or at least mentioned. It may be added that both counsel discussed an earlier unreported case, (Redford 1823), where Best C.J. expressed his strong disapproval of proposed evidence by a priest and ‘as the evidence was not wanted by the Crown, it was not pressed and the prisoner was convicted without it’: 1 Moo. 202.

35. There is also the case where technically admissible Crown evidence of any sort (not necessarily a confession) has a prejudicial effect which greatly outweighs its probative force. This too was a common law discretion confirmed in R. v Sang. The enactment of S. 78 was in order to put this discretion on a statutory footing, but it probably survives under S. 82(3) anyway. This case for using the discretion is not likely to arise with a priest's evidence of a penitential confession. If it did arise, exclusion would be because of the confession's prejudicial effect, not because of the relationship between the parties to it.

36. See, generally, Birch, , ‘The Pace Hots Up’ [1989] Crim. L.R.95Google Scholar; Cross, on Evidence, op. cit., f.n.4, p.191.Google Scholar

37. See R. v Goldenberg (1989) 88 Cr. App. R. 285.Google Scholar

38. R. v Boyes (1861) 1 B & S 311Google Scholar. See also Civil Evidence Act 1968, s. 14.

39. Doyle, , ‘Religious Freedom and Canadian Church Privileges’ (1984) 26 J. Church & State, 293, 296.Google Scholar

40. If the penitent was not a party to the proceedings, the priest's evidence would be hearsay. If he were a party to civil proceedings and the evidence was relevant and necessary, there are no grounds for expecting discretion to be used to exclude it. If he were the accused in a criminal case, the discretion as to confessions by accused persons, and the general discretion under S. 78 Police & Crown Evidence Act 1984 as to unfair evidence by the Crown would be relevant but, as discussed above, would not be invoked. See ante, f.n. 31–37 and associated text.

41. See Cross, on Evidence, p.454Google Scholar. It is usually regarded as part of the ‘Without Prejudice’ privilege attaching to communications between disputing parties, but in D. v N.S. P. C. C. [1978] 171, 236–237Google Scholar, Lord Simon treats it as an independent and recently developed doctrine.

42. McTaggart v McTaggart [1949] p. 94.Google Scholar

43. Pais v Pais [1971] p. 119.Google Scholar

44. Ante, at f.n. 27 and associated text.

45. Ante, at f.n. 25 and associated text.

46. [1963] 2 Q.B. 477, 492.

47. (1981) 75 Cr.App.R. 90.

48. Cross, on Evidence, p. 446.Google Scholar

49. Chantrey Martin & Co v Martin [1953] 2 Q.B.286 (C.A.)Google Scholar; Campbell v Tameside M.B.C. [1982] Q.B.1065 (C.A.)Google Scholar; Church of Scientology of California v D.H.S.S. [1979] 3 All E.R. 97 (C.A.)Google Scholar

50. Re M [1973] Q.B. 108 (C.A.)

51. Official Solicitor v K. [1965] A.C.201 (H.L.).Google Scholar

52. R. v St.Lawrence's Hospital Statutory Visitors [1952] 2 All E.R. 766 (D.C.).Google Scholar

53. 1950 Convention for the Protection of Human Rights and Fundamental Freedoms.

54. Constitution Act 1982, Part I: The Canadian Charter of Rights and Freedoms. See post, f.n. 111 and associated text.

55. R. v Chief Metropolitan Magistrate, ex pane Choudhury [1991] 1 Q.B. 429Google Scholar; [1991] 1 All E.R. 306, (D.C.); Derbyshire County Council v Times Newspapers Ltd [1993] 1 All E.R. 1011 (H.L.).Google Scholar

56. Post, Section 11.

57. Most the cases on evidentiary matters concern Article 6, which requires a fair trial. They are not directly in point, but they show a reluctance to interfere with a state's evidence rules unless a fair trial has manifestly been prevented thereby. See, generally, Osborne, Craig‘Hearsay and the European Court of Human Rights’ [1993] Crim. L.R. 255.Google Scholar

58. Ante, at f.n. 28 and associated text.

59. Op.cit., f.n. 12, paras 1, 47.

60. Op.cit., f.n. 12, paras 272–274.

61. Op.cit., f.n.12, paras 201, 205.

62. (1982) Report, pp. 421–422. This was before the enactment of the Canadian Charter of Rights and Freedoms.

63. See post, at f.n. 108 and corresponding text.

64. See post, at f.n. 90 and corresponding text.

65. Cook v Carroll [1945] Ir. R. 517.Google Scholar

66. Guaranteeing freedom of religion, and also s.27 (general statement on interpretation of the Charter).

67. For an eloquent putting of this argument, see the Note of Dissent by the President of the A. L. R. C. (O';Connor J.): Report, ante, f.n.12.

68. Stoyles, , The Dilemma of the Constitutionality of the Priest-Penitent Privilege– The Application of the Religion Clauses (1967) 29 UGoogle Scholar. of Pittsburgh L.R. 27, 51.

69. It is by no means clear how infrequently these occasions do arise, because they arise at first instance trials, which are unlikely to be reported or appealed. If a non-party witness is persuaded to answer, that is no grounds for appeal by a party. It may be that that is the case if the non-party witness is obliged to answer, although if the privilege belongs not to the witness but to a party, it might be different. The question of to whom a priest/penitent privilege belongs has not been settled, since the very existence of the privilege is denied by the common law, but it is usually said to belong to the priest. Foreign jurisdictions have placed it variously in the priest: Cook v Carroll, supra; in the pen itent: (U.S) Model Rule 219, post f.n. 106; both parties: A.L.R.C. Draft S.109, post f.n. 107 and associated text.

70. None of the U.S. privilege statutes require a ‘priest’ or a clergyman empowered to grant absolution: see Rees, , Confidential Communications to the Clergy, (1963) 24 Ohio State L.J. 55, 56Google Scholar, although most refer to the discipline enjoined by the church, post f.n. 94 and 106. (Model Rule 219). According to Reese, p. 58, none of the statutes creating a privilege since the Model Rule was published have adopted the Rule exactly but have made the privilege wider in respect of the person to whom the confession is made. Canadian courts have refused to discriminate between formal and informal confessions: post f.n. 113 Arguments are sometimes accepted for confining the privilege quite narrowly, but they are directed to prevent ‘jumped up’ or ‘pseudo’ churches leaping onto a band waggon. These arguments are not without their own difficulties, but they are less acute than those raised by crude dicrimination between ‘confessional’ and other churches.

71. As is well known the Catholic Church positively requires confession from the faithful and regards breach of the seal as an excommunication matter. See Canons 983, 988, 1338. The Church of England permits private confession and allows for absolution to be granted: see Canon B29 of Canons of the Church of England, 4 ed 1986, and still has extant Canon 113 of 1604 prohibiting on pain of ‘irregularity’ revelation of a confessed ‘crime or offence’. According to Bursell, op.cit. f.n. 10, p 108 any revelation would be followed by prosecution in an eccelesiastical court. Of the other churches, some require an express vow of secrecy on ordination, some do not; some have sacramental confession, some do not; some provide for absolution on confession, some do not; but it is heedless to go into the precise differences between them because all would regard disclosure as attracting disciplinary measures or at least a questioning of the minister's fitness for his duties. See A.L.R.C. Report ante, f.n. 12, para 204.

72. Evidence taken by commissions of enquiry suggests that all clergymen, irrespective of denomination, would refuse to give evidence of confidential communications, and would go to gaol rather than do so; see e.g. A.L.R.C. Report para 208. Nor does the confessant worry about the precise position between the minister and his church. As O'Connor J., dissenting from the conclusions of that report, points out: ‘A member of a church which does not have sacramental confession may well regard the confidentiality of a ‘heart-to-heart’ talk with a pastor as meriting no less protection than a sacramental confession’ (Para 210). He suggests that any statutory privilege should be for a communication by a person making a confession in accordance with his religion or seeking spiritual comfort or advice: Ibid Appendix A, 3.

73. See Doyle, op.cit. f.n. 39, p.295.

74. Ante, Section 3.

75. See R. v Fulling [1987] 2 All E.R. 65, 69, where the Court of Appeal had recourse to the OED: ‘Exercise of authority or power in a burdensome, harsh or wrongful manner; unjust or cruel treatment of subjects, inferiors etc; the imposition of unreasonable or unjust burdens’.

76. See ante. Section 2(b).

77. Such threats or censure are contempt of court, and perhaps the offence of perverting the course of justice. Theoretically, but only theoretically, the ecclesiastical authorities could find themselves at risk of prosecution.

78. Doyle, op.cit, f.n.39; A.L.R.C., ante, f.n.12; Provincial/Federal Task Force on Uniform Rules of Evidence, ante, f.n. 62.

79. Op.cit.ante, f.n.ll, Vol VIII, para. 2285.

80. Para. 2394.

81. Para. 2396.

82. [1945] Ir.R. 515.

83. At p.519.

84. 263 F.2nd 275 (1958).

85. Because of the peculiar position of the District of Columbia, a matter which would normally be tried in a state court was triable in a federal court.

86. Emphasis supplied.

87. At p.279.

88. Post, at f.n. 113 and corresponding text.

89. Post, Section 12.

90. In Australia, the tensions inherent in this approach are reflected in the differing provisions in the various state enactments and proposals and in the reports of debates in the various Parliaments. See McNicol, op cit, pp 331–337.

91. Later creations of a statutory privilege were inspired by a similar guarantee in the 1st Amendment to the U.S. Constitution. See below, f.n.98.

92. People v Phillips and Wife (1813) 1 West L.J.109.Google Scholar

93. People v Smith (1817) 1 Am. St. Tr. 779.Google Scholar

94. See Reese, op.cit. f.n.70, at p.62.

95. Ibid., pp.64–74. Some additions, presumably designed to prevent abuse, are restrictive rather than expansive, e.g., ‘of an established church’ and ‘of 21 years of age or over’.

96. See, e.g., Minnoesota, in Reese, op.cit. p.62.

97. Op.cit. f.n. 68, p.63.

98. ‘Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof’. As has been frequently pointed out, the two limbs of this Article appear to be to some extent in opposition. Measures (such as a priest/penitent privilege) designed to implement the spirit behind the second limb may well be said to favour, i.e. tend to establish, religion and so breach the first limb.

99. Op. cit., p. 60.

100. Reese, op.cit, p.63.

101. Ibid. p.86.

102. Stoyles, p.61. Reese raises the question but does not answer it; op.cit. p.88.

103. Stoyles, p.56. See also Reese, at p.87, who appears to take the same view.

104. Stoyles, p.57, And see Imwinkelreid, , The Liberalization of American Criminal Evidence Law, [1990] Crim. L.R.790Google Scholar, who postulates that any evidentiary privilege working against an accused in a criminal trial is likely to be struck down for breach of his right under the 6th Amendment to have compulsory process for obtaining evidence in his favour; citing on medical privilege, State v Hembd 305 Minn 120 (1975) and State v Trammel 231 Neb 137 (1989).

105. 445 U.S. 40 (1980) 63 Law Ed. 2nd. 186, 195. The case concerned marital privilege. In confining that privilege's width, Burger C.J. compared it with other privileges, including the priest/penitent privilege.

106. See, e.g. American Law Institute; Model Code of Evidence (1942) Rule 219:

(1) As used in this rule, (a) ‘priest’ means a priest, clergyman, minister of the gospel or other officer of a church or of a religious denomination or organisation, who in the course of its discipline or practice is authorised or accustomed to hear, and has a duty to keep secret, penitential communications made by members of his church, denomination or organisation; (b) ‘penitent’ means a member of a church or religious denomination or organisation who has made a penitential communication to a priest thereof; (c) ‘penitential communication’ means a confession of culpable conduct made secretly and in confidence by the penitent to a priest in the course of discipline or practice of the church or religious denomination or organisation of which the penitent is a member.

(2) A person, whether or not a party, has a privilege to refuse to disclose, and to prevent a witness from disclosing a communication if he claims the privilege and the judge finds that (a) the communication was a penitential communication and (b) the witness is the penitent or the priest and (c) the claimant is the penitent, or the priest making the claim on behalf of an absent penitent.

107. See ante, f.n.17.

108. Subsections 3 and 4 exclude statements made in furtherance of fraud or crime.

109. Quebec and Newfoundland.

110. See, ante, f.n.62.

111. R.v Church of Scientology of Toronto and Zaharia (1987) 31Google Scholar C.C.C. (3rd) 449 (a case on seizure under warrant of a church's confidential files). See also R. v Big M Drug Mart Ltd (1985)Google Scholar 18 D.L. R. (4th) 321, where a statute prohibiting Sunday trading was held to violate the religious freedom of non-Christians.

112. (1991) 67 C.C.C. (3rd) 289.

113. At p.305. The case by case approach for recognition of evidentiary privileges using Wigmore's criteria was first accepted in Slavutych v Baker (1975)Google Scholar 55 D.L.R. (3rd) 224. which did not concern a priest/penitent claim; and after the Charter, by R. v Church of Scientology, supra, which did concern such a claim. These cases were followed by the Supreme Court in R. v Gruenke.

114. R. v Gruenke, at p.303.

115. At p.321–322.

116. At p.322.

117. [1988]6 W.C.B. (2nd) 358.

118. See Ryan, H. R. Stuart. Obligation of the Clergy not to Reveal Confidential Information, Jo. of The Church Law Association of Canada, 1993, Vol 1 No 2, p.24Google Scholar; and R. v Gruenke, supra, at p.323. (L'Heureux-Dubé J).

119. It is perhaps a pity that R. v Gruenke was also an open and shut case, causing the majority to stop short after holding that the first criterion was not satisfied.

120. Unreported, set out in J of the Church Law Association of Canada 1993, Vol 1 No 2, 143.

121. Supra, f.n.117.

122. [1991] N.S.J. No. 468.

123. All Canadian provinces make it an offence for a clergyman to fail to report to the authorities information relating to child abuse. Although these statutes do not require the giving of evidence in court, it would be difficult to argue (if the statutes survive a challenge under Section 2(a) of the Charter, as they probably will) that the harm done by disclosure of the matter in evidence out-weighs the harm done to the litigation process by protection.

124. (1991) 67 C.C.C.(3rd) 289, at p.321.

125. Mitchell, , ‘Must Clergy Tell? Child Abuse Reporting Requirements Versus the Clergy Privilege and Free Exercise of Religion’ (1987) 71 Minn.L.R. 723, 767–8.Google Scholar

126. As happened in Eire and District of Colombia, see ante, Section 7.

127. (1991) 67 C.C.C. (3rd) 289, at p.322. It is useful to compare the client/lawyer privilege. This would be quite useless if it were not a legal privilege. Its utility rests completely on the fact that everyone knows that he can speak freely to his lawyer.

128. Ante, f.n.106.

129. Intervention by the European Court of Human Rights, should that ever happen, would be similarly limited by the generality of Article 9 of the European Convention on Human Rights. See ante, f.n. 53 and associated text.

130. Ante, f.n. 108 and associated text.

131. S. 109(1) begins ‘Where on the application of a person who is an interested person, the court finds …’

132. Compare Wigmore's view of statements which are not guaranteed secrecy by church discipline, that they cannot be privileged. Para. 2396.