Religious Confession Privilege and the Common Law

Religious Confession Privilege and the Common Law

Studies in Religion, Secular Beliefs and Human Rights VOLUME 9

Religious Confession Privilege and the Common Law

By

A. Keith Thompson

LEIDEN • BOSTON 2011

This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data Thompson, A. K. Religious confession privilege at common law : a historical analysis / By A. Keith Thompson. p. cm. Includes bibliographical references and index. ISBN 978-90-04-17232-6 (hardback : alk. paper) 1. Liberty of conscience. 2. Freedom of religion. 3. Confession (Law) 4. Confession (Canon law) 5. Evidence (Law) 6. Evidence (Canon law) 7. Confidential communications. I. Title. K3258.T46 2011 342.08’52--dc22 2010053774

ISSN 1871-7829 ISBN 978 90 04 17232 6 Copyright 2011 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints BRILL, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change.

CONTENTS Table of Cases in Alphabetical Order

xi

Chronological Table of Statutes

xxi

Preface to the Book

xxv

Introduction

1

Chapter One Review of Religious Confession Privilege in Early Evidence Texts Introduction The Error in R v Sparkes The Error in R v Gilham The Error in Wheeler v LeMarchant Conclusion

13 13 14 18 21 28

Chapter Two Religious Confession Privilege in Historical Context Introduction The Problem with Modern Perspective Church and State The Common Law Pre-Reformation Statutes and Common Law Coke’s Commentary on the Statute Articuli Cleri “Benefit of Clergy” and Church Jurisdictional Claims A Treason Exception to “Benefit of Clergy”? Did Treason Become an Exception to Other Church Privileges? Religious Confession Privilege in Garnet’s Case Garnet’s Case Conclusion

29 29 31 31 36 39 43 44 48 48 54 55 58

Chapter Three Religious Confession and Privilege in Canon Law Introduction Origins of Confession Origins of the Seal England’s Catholic History Before the Norman Conquest England’s Catholic History After the Norman Conquest Clerical Service in the Royal Courts Effect of the English Reformation on Pre-Existing Catholic Canon Law

59 59 59 63 66 68 70 72

vi

Contents The Seal of Confession in Anglican Canon Law Effect of New Conditional Seal Wording Non-Compulsory Protestant Confession What Authority Does Canon Law Have in Post-Reformation Secular Courts? Historical Debate About Secular Legal Respect for Canon Law Conclusion

Chapter Four Religious Confession Privilege at Common Law From the Seventeenth to the Twentieth Century Introduction Religious Confession Privilege Existed Before There Was a Discrete Law of Evidence The Practical Purpose of Early Evidence Texts as Handbooks for Barristers Categories in Evidence Law Texts Religious Confession Privilege in Cases About Legal Professional Privilege Legal Professional Privilege Cases that Contain an Obiter Statement Against the Existence of Religious Confession Privilege Legal Professional Privilege Cases that Contain Obiter Statements that Doubt Denials of Religious Confession Privilege Legal Professional Privilege Cases that Are Cited in Evidence Texts About Religious Confession Privilege But Which Do Not Even Mention Religious Confession Privilege Irregular Confessions Were There Any Clear Cases? Extra-Judicial Commentary on R v Constance Kent Conclusion Chapter Five Religious Communications Privilege at Common Law Introduction Elementary Religious Communications Privilege in Cases Already Discussed Religious Communications Privilege Dicta in Twentieth Century Cases D v National Society for the Prevention of Cruelty to Children Religious Communications Privilege in Twentieth Century Canadian Cases R v Gruenke Religious Communications Privilege in Twentieth Century Irish Cases

77 78 79 81 85 87

89 89 90 93 94 97 98 101

103 106 114 116 120

123 123 124 129 132 142 144 149

Contents Discretion in Commentary Conclusion Chapter Six Theories About the Extinction of Religious Confession Privilege Introduction Religious Confession Privilege Extinguished by the Reformation or the Restoration? Did Anti-Catholic Prejudice Extinguish Religious Confession Privilege? Does the Advent of Statutory Religious Confession Privilege Prove That It Had Been Extinguished at Common Law? Does the ‘Non-Establishment’ of a State Church Extinguish Common Law Religious Confession Privilege? The Dicta of Sir George Jessel MR Conclusion Chapter Seven Religious Confession Privilege at Common Law in Australia Introduction McGuinness v Attorney-General (Vic) Baker v Campbell R v Young Daniels Corporation v ACCC International Human Rights in the High Court of Australia Privilege and Immunity Privilege/Immunity in a Criminal Setting Gravitational Pull of Religious Confession Privilege Statutes in Australian Common Law Jurisdictions Consequences of a Recognition of Religious Confession Privilege at Common Law Residual Common Law Jurisdictions Conclusion Chapter Eight Religious Confession Privilege at Common Law in the United Kingdom and Ireland Introduction The Human Rights Act 1998 Religious Freedom Under the Convention Ecclesiastical Discipline Confessional Integrity Relies on Confidentiality The Clergy as Proxies – is God Entitled to an Evidentiary Privilege?

vii 152 154

155 155 155 160 164 167 174 179

181 181 183 185 187 191 195 198 204 207 210 212 213

217 217 218 223 224 225 226

viii

Contents

Article 9(2) Limitations HRA Section 3 Strasbourg Jurisprudence The Arrowsmith Test Analogy from a Proselytism Case? Analogy from Head Scarf Cases? Can the Absence of Legal Rules Justify the Abrogation of Freedom of Religion? Guidance from Other Commentary Religious Confession Privilege in England? Scotland, Northern Ireland and Wales Ireland Conclusion Chapter Nine Religious Confession Privilege in the United States Introduction The People v Phillips and the Common Law The Facts The Decision The Reasoning – Analogy to Self-Incrimination Privilege Religious Confession Privilege in English Common Law Constitutional Protection of Free Exercise of Religion The First Religious Confession Privilege Statute Religious Confession Privilege in Federal Common Law The Spread of Religious Confession Privilege Statutes From Generous Protection of Free Exercise Toward Neutrality What Influence Religious Neutrality? Have Mandatory Child Abuse Reporting Laws Eroded Religious Confession Privilege? Conclusion Chapter Ten Religious Confession Privilege in Canada and New Zealand Introduction Canada The Quebec Code Newfoundland – First Religious Confession Privilege Statute in the British Commonwealth Common Law Religious Confession Privilege in Canada New Zealand Conclusion

226 229 235 238 240 240 242 244 249 250 251 252 253 253 253 254 254 255 258 259 261 263 266 269 272 277 281

283 283 284 284 287 288 292 300

Contents Chapter Eleven Religious Confession Privilege in South Africa Introduction The Law Before 1996 The Law After 1996 Conclusion

ix 301 301 302 309 314

Chapter Twelve Policy – Should There Be a Religious Confession Privilege? Introduction Rationales for Religious Confession and Religious Communications Privilege Society’s Interest in Religious Communications Freedom of Religion Privacy Interests The Futility Rationale The Legitimacy Rationale Should Confessions Be Compelled at All? Theological Justification Conclusion

316 323 327 334 340 342 347 350 354

Conclusion Evidence Texts History Canon Law Common Law Confidential Religious Communications Privilege Religious Confession Privilege in Australia Religious Confession Privilege in the United Kingdom Religious Confession Privilege in the United States Religious Confession Privilege in Canada and New Zealand Religious Confession Privilege in South Africa Policy Extinction Theories Final Conclusion

357 357 362 363 364 366 368 372 372 373 375 375 376 378

Bibliography

379

Index

389

315 315

TABLE OF CASES IN ALPHABETICAL ORDER Adelaide Company of Jehovah’s Witnesses Incorporated v Commonwealth (1943) 67 CLR 116 ...............................................................168 Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360 ....................................................................................... 182, 190, 207 Akins v Abigroup Ltd (1998) 43 NSWLR 539.......................................................... ......................................................................7, 182, 184, 188, 190, 207, 214, 370 Alford v Johnson 103 Ark. 236; 146 S.W. 516 (1912) ........................................268 Alfred Crompton Amusement Machines Ltd. v Customs and Excise Commissioners (No. 2) [1974] A.C. 405 .....................................337 Anderson v Bank of British Columbia (1876) 2 Ch D 644 ..................................... ...........14, 16, 23–25, 28, 99–101, 126, 155, 193, 217, 284, 315, 359–360, 376 Angelton v Angleton 84 Idaho 184; 370 P.2d 788 (1962) ..................................268 Annesley v Earl of Anglesea (1743) 17 Howell St. Tr. 1139 ..............................205 Anonymous (1693) Skinner 404; 90 ER 179 ............ 3, 98–99, 157, 159, 193, 358 A.M. and S. Europe Ltd v Commission of the European Communities (1983) QB 878 .........................................................202 Arrowsmith v the United Kingdom, App. No. 7050/75 (1978) 19 D&R 5 ............................................................ 238–239, 247–248, 252 Ashworth Security Hospital v MGN Limited (2001) All ER 991......................136 Attorney-General v Briant (1846) 15 LJ Exch 265; (1846) Revised Reports 71; 153 ER 808 ................................... 115, 193–194, 304, 358 Attorney-General v Mulholland and Foster [1963] 2 QB 477 ................................ .......................................................................................... 129–132, 137, 193, 367 Attorney-General v Guardian Newspaper (No. 2)[1990] 1 AC 109 ................244 Attorney-General (NT) v Maurice (1986) 161 CLR 475 ................. 192, 202, 346 Attorney-General (Vic); Ex rel Black v Commonwealth (1981) 146 CLR 559 .........................................................................................168 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 .................................................................................197, 369 B v N (1994) 35 NSWLR 140 ..............................................................................188 Baker v Campbell (1983) 153 CLR 52 ...................................................................... ........................................ 136, 160, 182, 184–187, 280, 192, 202, 205, 214, 369 Bato Star Fishing (Pty) Ltd v The Minister of Environmental Affairs and Tourism and others (CCT 27/03) [2004] 2 ACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC) (12 March 2004)...................................................309 Bell v University of Auckland [1969] NZLR 1029 .....................................141, 367

xii Table of Cases Bell’s case Court of Common Pleas for the first Judicial District of Pennsylvania, Browne’s Reports, 376..........................................257 Bernstein v Bester NO 1996 (2) SA 751 (CC) ....................................................301 Bellinger v Bellinger [2003] 2 AC 467 .........................................................222, 230 Board of Education v Grumet 512 U.S. 687, 705–706 (1994) ..........................272 Briggs v Hartley (1849) 19 LJ Ch 416 ...................................................................81 Broad v Pitt (1828) 3 Carr & P 518; 172 ER 528..................24, 27, 102 108, 113, 125, 131, 150, 152, 174–175, 193, 203, 262, 315, 317, 344–345, 359, 366 Bryce v. Episcopal Church in the Diocese of Colo., 289 F.3d 648, 655 (10th Cir. 2002) .................................................................275 BT Australasia Pty Ltd v State of New South Wales (High Court of Australia, 3 December 1998, judgement reserved) .................................190 Butler v Moore (1802) 2 Sch & Les 249; McNally, Evidence (1804), 253............. .......................................... 21, 103, 114–115, 121, 149, 161–163, 193, 258–259 Buuck v Kruckeberg 121 Ind. App. 262; 95 N.E. 2d 304 (1950) ......................268 C v the United Kingdom (App. No. 10358/83 (1983) 37 D&R 142 .................247 Cantwell v Connecticutt 310 U.S. 296, 303 (1940) ............................................207 Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121.....................................................................................201–202, 345 Casey v London Brighton and South Coast Railway Company (1870) Law Rep 5 CP 146 ................................................................24 Chappel v the United Kingdom App. No. 12587/86 ..........................................243 Chartered Bank of India v Rich (1863) 4 B & S 73; 32 LJ (QB) 300; 122 ER 387 ..............................................................................24 Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) ..........................................................................................246 City of Boerne v Flores 521 U.S. 507, 543 (1997) .......................................255, 260 Colbert v State 125 Wis. 423; 104 N.W. 61 (1905) ............................................268 Commonwealth v Gallo 275 Mass. 320; 175 N.E. 718 (1931) ..........................268 Conway v Rimmer [1968] AC 910 ......................................................................188 Cook v Carroll [1945] Ir Rep 515 .............................................................................. ................................ 131, 149–152, 154, 159, 164, 184, 194, 252, 308, 361, 368 Cooke’s case 4 St.Tr. 748 (1696) ...........................................................................257 Corsie v. Campanalonga, 721 A.2d 733 (N.J. App. 1998).................................276 Curling v Perring (1835) 2 My & K 380; 39 ER 989............................................24 D v NSPCC [1978] AC 171 ............................................................6, 130–141, 143, 146–149, 153, 160, 188, 193, 198, 204–205, 270, 308, 336–338, 367–368 Daniels Corporation v ACCC (2002) 192 ALR 561; (2003) 77 ALJR 40 .............. .......................................................................................................................7, 133, 135, 172, 179, 182, 191–196, 198, 203–204, 206, 211, 214, 232, 369–370 Dehler v State ex rel Bierck 22 Ind.App. 383; 53 N.E. 850 (1899) ...................268 Derbyshire CC v Times Newspapers Ltd [1993] AC 534...................................244

Table of Cases xiii Doe v Corporation of the President of the Church of Jesus Christ of Latter-Day Saints 122 Wn. App. 556 (2004) ........................276 Dogru v France, Application No. 27058/05 .......................................................241 Donoghue v Stevenson [1932] AC 562; [1932] All ER Rep 1...................141, 367 Du Barré v Livette (1791) 1 Peake 108; 170 ER 96 ................................................. .......................................................... 5, 13–15, 20, 24, 28, 94, 96, 101–105, 113, 125, 131, 153, 163, 175, 193–194, 226, 258, 270, 304, 315, 357–359, 366 Duchess of Kingston’s case (1776) 20 Howells St. Tr. 612....................................................... 16–18, 21, 95–96, 160 Eckmann v Board of Education 106 FRD 70 (ED Mo. 1985) ..........................212 Efstratiou v Greece, 27 Eur.Ct. HR (ser. A) 2347 (1996–VI) ...........................227 Ellis v U.S 922 F. Suppl. (1996) 539.....................................................................276 Employment Division v Smith 494 US 872 (1990) .................................................. ..........................................................................205, 246, 260, 269, 273, 279–280 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 ................................................................................................. ......................................................... 172, 182, 185, 187, 190, 207–209, 212, 371 Everson v Board of Education 330 US1 (1947) ..................................................207 Falmouth v Moss (1822) 11 Price 455; 147 ER 530...........................................105 Finch v Grieve (1991) 22 NSWLR 578 ...............................................................188 Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27 .......................234 Francis Hopu and Tepoaitu Bessert v France, Communication No. 549/1993 (views of 29 July 1997), UN Doc. A/52/40 vol. 2 (1999), p 70.............................................................243 Garnet’s case (1606) 2 Howells State Trials 217 ...................................................... .............................................................................5, 15, 30, 43–44, 49–52, 54–59, 87, 92, 106–108, 113, 120, 124, 154, 159, 193, 362, 366, 226, 228, 236, 315 Gedge v Gedge (1909), referred to in Phipson, SL, The Law of Evidence, 5th ed, London, Stevens & Haynes, 1911, p 188 .................................................................................... 26–27 Ghaidan v Godin-Mendoza [2004] 2 AC 557 .................. 222–223, 229, 232–234 Gillooley v State 58 Ind. 182 (1877) ....................................................................268 Grant v Downs (1976) 135 CLR 674 ........................185–186, 190, 207, 368–369 Greenlaw v King (1838) 1 Beav 137; 48 ER 891 .............................3, 99–101, 193 Greenough v Gaskell (1833) 1 My & K 98; 39 ER 618 ...............24, 200–201, 344 Hadley v Baxendale (1854) 9 Exch 341 ........................................................38, 115 Handyside v the United Kingdom, 24 Eur. Ct. H.R. (ser A) at 22 (1976) ..........................................................................................246 Hawkins v United States 358 US 74 (1958) ................................................188, 272 Holomisa v Argus Newspapers Ltd 1996 (6) BCLR 836 (W) .................. 310–311 Howe v State of South Australia (1998) 196 LSJS 182 ......................................188

xiv Table of Cases Howlin v The Hon. Mr Justice Morris (2005) Irish Supreme Court, 121 & 139/04, http://www.courts.ie/judgments.nsf/ GenericPrint?OpenForm&id=0.8352830417726089, last viewed 2/06/2006 ..............................................................................136, 308 In re Cueto C.A. 2d 554 F 2d 14 (1977) .............................................................271 In re Keller (1887) 22 LR Ir 158................................................................................. ......................................................... 109–110, 113, 124, 149, 194, 205, 229, 366 In re Koellen’s Estate 162 Kan. 395; 176 P. 2d 544 (1947) .................................268 In re Murtha 279 A.2d 889; 115 N.J. Super. 380 (1971) ...................................271 In re S (Minors) (Care Order: Implementation of Care Plan) [2002] 2 AC 291 ............................................................................230 In re Schaeffer’s Estate 52 Pa.Dauphin Co.Rep. 45 (1941) ...............................268 In re Swenson (1931) 183 Minn. 602; 237 N.W. 589 ....................... 264, 266, 268 In re Toomes 54 Cal. 509 (1880) ..........................................................................268 In re Verplank 329 F. Supp. 433 (C.D. Cal. 1971) .............................................270 Ivanova v Bulgaria, Application No. 52435/99 .........................................242, 246 Jackson ex dem Wyckoff v Humphrey 1 Johnson’s Reports 498 .......................257 Jaffee v Redmond 518 US 1 (1996) ......................................................................188 Johnson v Commonwealth 310 Ky. 557; 221 S.W. 2d 87 (1949) .......................268 Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116, 73 S.Ct. 143, 97 L. Ed. 120 (1952) .................................................................................275 Kervanci v France, Application No. 31645/04 ...................................................241 Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 ..........................................190 Klass v Germany, 28 Eur. Ct. H.R. (ser. A) at 21 (1978) ..................................244 Knight v Lee 80 Ind. 201 (1881) ..................................................................268, 270 Kohloff v Bronx Savings Bank 37 Misc. 2d 27; 233 N.Y.S. 2d. 849 (Civ.Ct. City of N.Y. 1962) ..............................................268 Kokkinakis v Greece (application no. 14307/88), judgment delivered May 25, 1993 [1993] ECHR 20 ....................................240 Kruger v Commonwealth (1997) 190 CLR 1......................................................168 Krugilov v Krugilov 29 Misc. 2d 17; 217 N.Y.S. 2d 845 (Sup.Ct. 1961) ...................................................................................................268 Kusnetsov and others v Russia, Application No. 184/02 ..................................242 Lafone v Falkland Islands Company (1857) 4 K & J 34; 70 ER 14 ....................24 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.................................................................... 188, 208–210, 212, 371 Lebanese Moslem Association v Minister for Immigration and Ethnic Affairs (1986) 11 FCR 543 ...................................................168, 370 Leyla Sahin v Turkey (application no. 44774/98) .................................... 240–241 Lightman v. Flaum, 97 N.Y. 2d 128 (N.Y.App. 2001) .......................................276 M v L [1997] 3 NZLR 424....................................................................................188 M v Ryan (1997) 143 DLR (4th) 1 ..............................................................188, 189 Mabo v Queensland (No 2) (1992) 175 CLR 1 ..........................................197, 369

Table of Cases xv Mann Singh v France, Application No. 24479/07 .....................................243, 338 Manoussakis and others v Greece, 17 Eur. Ct. H. R. (ser. A) 1347 (1996–IV)) .................................................................................247 Marbury v Madison 5 U.S. 137 (1803) ...............................................................221 MacBride v MacBride 4 Espinasses nisi prius cases, 243 .................................257 MacKonochie v Lord Penzance (1881) 6 AC 424 ................................................81 McGuinness v Attorney-General of Victoria (1940) 63 CLR 73............................. ............................................ 6, 182–184, 187–189, 214, 308, 315, 325, 345, 367 McMann v Engle 301 U.S. 684; 57 S.Ct. 785; 81 L.Ed. 1342 ............................264 McMann v Securities and Exchange Commission 2 Cir., 1937; 87 F. 2d. 377, 378; 109 A.L.R 1445 .......................................................264 McTaggart v McTaggart [1949] Probate 94 ............................................................. ..........................................................................121, 131, 137, 149, 193, 306–307 Masquat v Maguire 683 P. 2d 1105 (1981).........................................................271 Michael Osborne v Church of Jesus Christ of Latter-day Saints, Docket number 52452–6–I, http://caselaw .lp.findlaw.com/scripts/getcase.pl?court=wa&vol=2004 _app/524526maj&in… (last visited August 14, 2008) ................................275 Milburn v Haworth Mo. 593; 108 P. 155 (1910) ................................................268 Minister for Foreign Affairs & Trade v Magno (1992) 112 ALR 529 ...............196 Minister for Immigration and Ethnic Affairs v Lebanese Moslem Association (1987) 17 FCR 373 ........................................................168 Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273................................................196–198, 369 Mitsunaga v People 54 Colo. 102; 129 P. 241 (1913) ........................................268 Mockaitis v Harcleroad 104 F. 3d. 1522 (1997) ........................................ 272–273 Moragne v States Marine Lines Inc 398 US 375 (1970) ............................209, 371 Mullen v United States 263 F 2d 275 (1959) ............................................................ .................................................164, 172, 197, 212, 253, 262–270, 277, 281, 305 Nelson v Fish (1990) 21 FCR 430 ........................................................................168 Normanshaw v Normanshaw (1893) 69 LTR 468 ................................................... ........................... 26–27, 109, 111, 126–131, 150, 178, 188–189, 193, 304, 366 Olmstead v United States 277 U.S. 438, 470; 48 S.Ct. 564, 575; 72 L. Ed. 944 ......................................................................263 Partridge v Partridge 220 Mo. 321; 119 S.W. 451 (1909) .................................268 Pearse v Pearse (1846) 1 De G 8 Sm 12; 63 ER 950 .........187, 229, 315, 325, 338 People v Diercks 44 Ill.Dec. 191 (1980) ..............................................................270 People v Gates 26 N.Y. Com.L. Rep.311 (1835).........................................268, 270 People v Thompson 184 Cal. Rptr. 72; 133 Cal. App. 3d 419 (1982) ...............270 Perry v Latvia, Application No. 30273/03 .........................................................242 Poplar Housing and Regeneration Community Association Ltd v Donogue [2002] QB 48 ......................................................230 ProLife Alliance v British Broadcasting Corporation [2003] UKHL 23 ..........231

xvi

Table of Cases

R (Anderson) v Secretary of State for the Home Department [2003] 1 AC 837..........................................................................234 R (on the application of Begum) v Head Teacher and Governors of Denbigh High School [2006] 2 All ER 487 ..............................241 R (on the application of X (by her father and litigation friend)) v Head Teacher and Governors of Y School [2007] EWHC 298 ............................................................................241 R v A (No. 2) [2002] 1 AC 45...................................................................... 229–233 R v Anderson, NZCA 27/04, 23 June 2004 ........................................................245 R v Big M Drug Mart Ltd [1985] 1 SCR 295 ................................... 142, 169, 289, ....................................................................................................................312, 327 R v Bull (1997) 17 SR (WA) 364..........................................................................188 R v Castro (1873) 9 QB 219;(1874) (Tichbourne case) 2 Charge of the Chief Justice 648 .................................................. 126, 175, 194 R v Constance Kent (1865), unreported but referred to in Attlay’s Famous Trials of the Nineteenth Century, 1899, p 113. See also Tiemann, WH and Bush, JC, The Right to Silence, 2nd ed, Nashville, Abingdon Press, 1983, pp 117–120, and Phipson, SL, Best’s Law of Evidence, 11th ed, London, Sweet & Maxwell, 1911, pp 565–566 ........................ 4, 90, 116–120, 125, 135, 162, 176, 366, 377 R v Garner (1848) 3 Cox C.C. 175......................................................................349 R v Gilham (1828) 1 Moody Cr Cas 186; 168 ER 1235.......................................... ..................................................................................... 3, 5, 14, 16, 18–21, 24, 28, 93, 102–103, 108–109, 115, 125, 175, 193, 204, 261, 304, 317, 320, 349, 359 R v Griffin (1853) 6 Cox Cr Cas 219 ..................... 24, 27, 91, 113, 115–116, 121, 125–126, 131, 135, 150, 175, 177, 194, 205–206, 304, 317, 350, 365–366 R v Gruenke (1991) 3 SCR 263................ 6, 10, 11, 144–151, 154, 159, 164–167, 169, 179–180, 185, 187, 189, 194–195, 197, 214, 239–240, 248–249, 266, 283, 286–287, 289–291, 297–299, 308–309, 311–314, 316–318, 322–324, 327–328, 331, 334–335, 338–340, 354, 361, 367–368, 374–375 R v Hay (1860) 2 Foster & Finlason 4; 175 ER 933 ................................................ ..............................3–4, 24, 27, 30, 111–113, 118, 120, 124, 128, 162, 304, 366 R v Howse [1983] NZLR 246 ..................................................................................... ........................................ 194, 212, 266, 284, 295–300, 309, 312–313, 316, 322 R v K (1993) 97 Cr App R 342 ............................................................................188 R v Kingston (1830) 4 Car & P 387 .....................................................................349 R v L (1991) 174 CLR 379....................................................................................208 R v Lambert [2002] 2 AC 545..............................................................................230 R v Lewis 4 Espinasses nisi prius cases, 225 ......................................................257 R v Lynch [1954] Tas SR 47................................................................. 181, 194, 214

Table of Cases xvii R v Medina (1988) Unreported Supreme Court of Ontario case (filed in Ontario Judgements Quicklaw Database as [1988] OJ No 2348) ....................................................................144 R v Mills (1999) Unreported, New South Wales District Court, Orange, September, 1999 .....................................................211 R v Radford (1823) Unreported but referred to in R v Gilham (1828)1 Moody Cr Cas 186; 168 ER 1235 ............................................. ..................................20, 102–103, 125, 174–175, 193, 204, 261–262, 304, 359 R v Secretary of State for the Home Department Ex Parte Briand [1991] 1 AC 696 ...................................................................219 R v Secretary of State for the Home Department, ex parte Simms [2000] AC 115 .............................................................. 244–245 R v Sparkes (c 1790) unreported but referred to in Du Barré v Livette (1791) 1 Peake 108; 170 ER 96 ............................................. .............................................................................5, 14–15, 18, 20–21, 24, 28, 94, 96, 101–104, 107–108, 115, 125, 156, 163, 175, 193, 258, 304, 358–359, 366 R v Taylor (Paul) [2001] EWCA Crim 2236; [2002] 1 Cr App R 37 ..............245 R v Wild (1835) 1 Moody 452; 168 ER 1341 ..................................3, 24, 108–109 R v Woolston (1729) 2 Str 834; 93 ER 881 ...........................................................81 R v Young (1988) Unreported but referred to in Daily Mirror (NSW) 17 August 1988 and in McNicol, SB, Law of Privilege, Sydney, Law Book Co, 1992, p 330, note 30............................................................................................165, 172 R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681..................................... .........................................................................6–8, 104, 131, 134, 136–137, 140, 142, 165, 182, 184, 186–191, 194, 198, 203–204, 211, 214, 232, 308, 370 R.K. v Corporation of the President of the Church of Jesus Christ of Latter-Day Saints http://docs.justia.com/cases/federal/ district-courts/washington/wawdce/2:2004cv02338/123236/88/ (last visited November 8, 2008) ......................................................................275 Randolph’s case (1413), Coke, Sir E, 2 Institutes 629 .............3, 43, 49–50, 54, 99 Re Church of Scientology and the Queen (No 6) (1987) 31 CCC (3d) 449 ........................................... 142–144, 146, 169, 288–289, 327 Re D (Infants) [1970] 1 WLR 599; [1970] 1 All ER 1088.................................188 Reference Re Legislative Privilege (1978) 39 CCC (2d) 226 .............................142 Reid v Langlois (1849) 1 Mac. & G. 627; 41 ER 1408 ..................23–25, 100, 360 Relationships Australia v Pasternak (1996) 133 FLR 462.................................188 Re Minister for Immigration & Multicultural Affairs, ex parte Lam (2003) 195 ALR 502 .........................................................196, 198 Reutkemeier v Nolte 161 N.W. 290; 179 Iowa 342 (1917) ................................270 Rogers v Home Secretary [1973] AC 388............................................................188

xviii

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Rosen v United States 245 U.S. 467, 471; 38 S.Ct. 148, 150; 62 L.Ed. 406 ......................................................................................................265 Ross v Gibbs (1869) Law Rep 8 Eq 522.......................................................... 24–25 Russell v Jackson (1851) 9 Hare 387; 68 ER 900 ................................. 99–101, 193 Ruthven v De Bour (1901) 45 Sol J 272 ....................................... 27, 125, 131, 194 S v Bierman (2002) 5 SA 243 (CC) .............................................. 10, 301, 312, 375 Science Research v Nassé [1980] AC 1028 ..........................................................188 Seager v Copydex Ltd [1967] 2 All ER 415 ........................................................143 Sherman v State 170 Ark.148; 279 S.W. 353 (1926) .........................................268 Shore v Wilson (1842) 9 Cl. and Fin 524; 8 ER 450 ............................................81 Simrin v Simrin 43 Cal. Rep. 376 (Dist.Ct. App. 1965) ....................................268 Skinner v Great Northern Railway Company (1874) Law Rep 9 Ex 298 ...............................................................................................24 Slade v Tucker (1880) 14 Ch D 824 ..........................................................14, 23, 25 Slavutych v Baker [1976] 1 SCR 254 ........................142–144, 146, 189, 288–289 Smit v Van Niekerk (1976) (4) SA 293 (A) .............................................................. ................................................................... 10, 301–303, 306, 308–311, 313, 375 State of Washington v Scott A. Martin & Rich Hamlin, Docket Number 67254 – 7, http://www.tvw.org/modules/ opinions/672547_o.htm (last visited November 7, 2008) .................. 273–274 State v Andrews 187 Kan. 458; 357 P.2d 739 (1960) .........................................268 State v Bailey Pennington’s Reports, 415 ...........................................................257 State v Barber 346 S.E. 2d 441 (1986) ................................................................271 State v Burkett 357 N.W. 2d 632 (Iowa 1984)....................................................271 State v Buss 76 Wn. App. 780, 786; 887 P. 2d 920 (1995) .................................274 State v Cox 742 P.2d 694; 87 Or. App. 443 (1987).....................................270, 275 State v Glenn 115 Wn. App. 540 (2003) .............................................................276 State v Lender 124 N.W. 2d 355; 266 Minn. 561 (1963) ..................................270 State v Morehous 97 N.J.L 285; 117 A. 296 (1922)............................................268 State v Morgan 196 Mo. 177; 95 S.W. 402 (1906) .............................................268 State of New Jersey v Cary Docket number A3969–99, Decided June 1, 2000 http://www.romingerlegal.com/ new_jersey/appellate/a3969–99.opn.html (last visited November 8, 2008) ......................................................................276 Steele v Stewart (1843) 1 Ph 471; 41 ER 711........................................................24 Sunday Times v the United Kingdom, 30 Eur. Ct. H.R. (ser. A) (1979) ...................................................................................................244 Tannian v Synnott (1903) 37 Ir. L. T. 275........................................... 27, 131, 150, ....................................................................................................................152, 194 Taylor’s case (1676) 1 Vent. 293; 86 ER 789 .........................................................81 Terrapin Ltd v Builder’s Supply Co (Hayes) Ltd et al [1960] RPC 128 ............143

Table of Cases xix The People v Phillips (1813) NY Ct of General Sessions, reprinted at (1843) 1 Western LJ 109 and (1955) 1 Catholic Lawyer 199 ........................................................................................... ..................................21, 115, 162–163, 172, 177, 194, 253–262, 305, 331–332 The People v Smith (1817) 2 City Hall Recorder (Rogers) 77 .............................................................. 115, 172, 177, 261–262, 292 Totten v United States 92 U.S.105; 23 L.Ed. 605 ................................................264 Trammel v United States 445 U.S. 40 (1980) .............................272, 316, 321–322 United States v Grunewald 233 F. 2d 556, 591 (2d Cir. 1956) rev’d, 353 U.S. 391 (1957) .......................................................348 United States v Kenney, D.D.C. 1953; 111 F. Suppl. 233 ...................................265 United States v Kidd 20 C.M.R. 713 (1955) .......................................................271 Vaillant v Dodemead (1743) 2 Atk 524; 26 ER 715 ....................................21, 104 Valsamis v Greece, 2 Eur.Ct. HR (ser. A) 2312 (1996–VI) ...............................227 Vickers v Stoneman 73 Mich. 419 (1889) ...........................................................268 Wallace v Jaffree 472 U.S. 38 (1985) ...................................................................207 Warickshall’s Case (1783) 1 Leach 263; 168 ER 234 .........................................320 Watson v Jones 80 U.S.[13 Wall.] 679; 20 L. Ed. 666[1872] .............................205 Wheeler v LeMarchant (1881) 17 Ch D 675; 50 LJ Ch 793; [1881–5] All ER 1807 ...............5–6, 10, 14, 16, 21–28, 99–101, 126, 144, 150–151, 155, 172, 174, 177, 193, 284, 292, 315, 359, 374, 376 Williams’ case (1797) How St Tr 654 ..................................................................170 Wilson v Rastall (1792) LTR 753; 100 ER 1283; (1775–1802) All ER 597 ....................................15, 96, 104–105, 157, 188–189 Wissekerke v Wissekerke & Wissekerke (1923) P.H. F5 .......................................... .................................................................................. 301, 303, 306–309, 313, 375 Wisconsin v Yoder, 406 US 203 (1972) ...............................................................227 Wolfe v United States 291 US 7 (1934) ...............................................................188 Woolley v North London Railway Company (1869) Law Rep 4 CP 602 ..............................................................................................24 Wylde v Attorney-General for New South Wales (1948) 78 CLR 224 ................................................................................205 X v the United Kingdom, App. No. 7992/77, 14 Eur. Comm’m H.R. Dec. & Rep. 234 (1978) ............................................243

CHRONOLOGICAL TABLE OF STATUTES United Kingdom 1164 Henry II’s ‘Constitutions of Clarendon’ .....................................................70 1315 9 Edward II St.1 (Statute Articuli Cleri) ......................................................... ................................... 5, 30–31, 39–44, 48, 50–55, 70, 115–116, 166, 362–363 1352 25 Edward III (Great Statute of Treasons) .................................................51 1489 4 Henry VII, c 14.................................................................................... 45–46 1531 21 Henry VIII, c.5 (dealt with Probate); 21 Henry VIII, c.6 (dealt with Mortuaries) and 21 Henry VIII, c.13 (dealt with Pluralities) ....................................................73 1532 23 Henry VIII,c.I; 23 Henry VIII,c.II and 23 Henry VIII, c.3 ..............................................................................................46 1532 23 Henry VIII, c.20 (Annates).....................................................................73 1533 24 Henry VIII, c.12 (The Statute of Appeals) ..................................... 73–75 1535 25 Henry VIII, c.19 (The Act for the Submission of the Clergy) .................................................................................... 73, 76, 80–81 1536 26 Henry VIII, c.1 (The Act of Supremacy)..........................................73, 76 1539 31 Henry VIII, c.14 (The Act of Six Articles) .......................................74, 76 1539 31 Henry VIII, c 14, ss 1, 2 & 3 (Act for Abolishing Diversity of Opinions in certain Articles concerning Christian religion) ...............................................................................................80 1547 I Edward VI. c.12 ..........................................................................................46 1548 2 & 3 Edw VI, c1 ...........................................................................................80 1548 5 & 6 Edw VI, c1 ...........................................................................................80 1554 1 Mar, sess 2 c2 ..............................................................................................80 1558 1 Eliz I, c2 .......................................................................................................80 1623 21 James 1,c.28 §7 .........................................................................................42 1662 13 & 14 Chas II, c4 (Act of Uniformity) ......................................................81 1689 Bill of Rights Act .........................................................................................218 1791 31 Geo. 3, c 32 (The Roman Catholic Relief Act) .................... 119, 162, 176 1827 7, 8 George IV, c.28 .......................................................................... 34, 45–46 1829 10 Geo. 4, c 7 (The Roman Catholic Relief Act) ...................... 119, 162, 176 1848 Indictable Offences Act ................................................................................119 1848 Summary Jurisdiction Act ...........................................................................119 1851 Chancery Act (14 & 15 Vict, Chap 83) .....................................................176 1857 20 & 21 Vic, c 77 and c 85 ............................................................................32

xxii Table of Statutes 1873, 1875 Judicature Acts - Supreme Court of Judicature Act 1873 (36 & 37 Vic c 66) and the Supreme Court of Judicature Act 1875 ( 38 & 39 Vic c 77) .........................................................176 1911 Official Secrets Act .......................................................................................130 1934 Incitement to Disaffection Act ....................................................................238 1950 Convention for the Protection of Human Rights and Fundamental Freedoms ...................................................217–252, 330, 372 1971 Misuse of Drugs Act .....................................................................................245 1973 Matrimonial Causes Act .....................................................................222, 230 1977 Rent Act ........................................................................................................234 1984 Police and Criminal Evidence Act ........................................................83, 153 1998 Government of Wales Act............................................................................250 1998 Human Rights Act................ 83–84, 217–223, 229–235, 239, 244–252, 372 1998 Northern Ireland Act ...................................................................................250 1998 Scotland Act..................................................................................................250 United States 1777 New York Constitution..............................................115, 163, 255, 259, 331 1791 First Amendment ...............................................................................115, 163, 165, 171, 195, 207, 255, 259, 273, 279, 281, 316, 320–321, 328, 332, 339, 372 1821 New York Constitution...............................................................................259 1828 NY Rev. Stat. 1828. Pt. 3. c.7. tit. 3. § 72 ......................................................... ................................................. 115, 165, 172, 177, 210, 253, 261, 267, 279, 287 1828 et seq State Religious Confession Privilege Statutes ..................................... ................................................ 123, 164, 171–172, 210, 253, 266–282, 321, 373 1868 Fourteenth Amendment ....................................................................207, 273 1917 Selective Service Act ...................................................................................273 Inland Revenue Code...........................................................................................273 Mandatory Child Abuse Reporting Statutes ....................................277–281, 373 1994 Religious Freedom Restoration Act ..........................................................273 New Zealand 1885 Evidence Further Amendment Act, section 7 (49 Vict No 15) ..............................165, 177, 284, 292–293, 296, 374 1895 Evidence Further Amendment Act 1895, section 9 ................. 284, 293, 295 1908 Evidence Act, section 8 ...................................................................... 292–293 1980 The Evidence Amendment Act ................ 165, 212, 292–293, 295–296, 298 1990 Bill of Rights Act ...........................................................................................221 2006 Evidence Act 2006, s. 58 ....................................284, 292–295, 297–300, 374

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Australia 1890 Evidence Act, c 55 (54 Vic No 1088) (Victoria, Australia) ...................................7, 165, 177, 181, 183, 209–210, 214 1898 Evidence Act (New South Wales, Australia) ............................... 7, 165, 211 1900 Commonwealth of Australia Constitution Act (63 & 64 Vict, c 12 ) (The Australian Constitution 1901) ................................................................................................. ........................... 7, 167–171, 177, 194–196, 206–207, 210, 214, 295, 370, 377 1910 Evidence Act (Tasmania, Australia) ............7, 165, 181, 183, 209–210, 213 1939 Evidence Ordinances (Northern Territory, Australia) ...................................7, 123, 165, 181, 183, 209–210, 213 1958 Evidence Act (Victoria, Australia) ................................9, 123, 165, 211–212 1974 Trade Practices Act (Commonwealth, Australia) ....................................192 1986 Criminal Procedure Act (NSW) .................................................................186 1989 Evidence (Religious Confessions) Amendment Act (New South Wales, Australia)............................................................................... ..................................................... 9, 106, 165, 172, 181, 205, 209, 211, 214, 340 1995 Evidence Act (New South Wales, Australia) .................................................. ............................................................. 7, 123, 165, 186, 190–192, 198, 209, 211 1995 Evidence Act (Commonwealth, Australia), also known as the Uniform Commonwealth Evidence Act ....................................... ............................ 7, 123, 165, 168, 181, 195, 205, 207–210, 214, 294, 371, 378 1997 Evidence Amendment (Confidential Communications) Act (New South Wales, Australia) .................................................186, 203–204 1999 Criminal Procedure Amendment (Sexual Assault Communications Privilege) Act (New South Wales, Australia) ..................186 2001 Evidence Act (Tasmania, Australia) .............................7, 123, 165, 209–210 2006 Charter of Human Rights and Responsibilities Act (Victoria, Australia) ..................................................................................329 Ireland 1877 Irish Judicature Act ......................................................................................110 1922 Irish Constitution................................................................................151, 164 Canada 1856 An Act to Amend the Law of Evidence (19th Victoria, Cap. 15), section 6 ........................................177, 284, 287, 373 1975 Quebec, Charter of Human Rights and Freedoms, R.S.Q., c.C-12, 2.9 ....................................................................................283, 300

xxiv Table of Statutes 1982 Canada Act (UK) ....................................................................................8, 142 1982 Constitution Act (Canadian Charter of Rights and Freedoms) ................ 8, 142–144, 146–148, 169–171, 194–195, 287, 289–291, 300, 327–328, 368, 374 1990 Newfoundland, Evidence Act, R.S.N. 1990, Chapter e-16, s. 8.....................................................................283, 287, 299–300 South Africa 1917 Criminal Procedure Act ...............................................................................303 1955 Criminal Procedure Act ..............................................................302–303, 313 1996 Constitution of the Republic of South Africa ................................................... ...........................................................13, 340, 301, 306, 309–311, 313–314, 375 United Nations 1948 Universal Declaration of Human Rights ........................................... 329–330 1976 International Covenant on Civil and Political Rights...................... 329–330

PREFACE Since I commenced legal practice in 1979 I have provided legal advice to a variety of churches. Since 1991 when I commenced working in-house for The Church of Jesus Christ of Latter-day Saints, that work has occasionally required that I help ecclesiastical personnel respond to requests that they disclose confessional information. Though I was not surprised to learn that the police in Australia and New Zealand were unaware of the law that privileged the clergy from the disclosure of confessional secrets, I was surprised to find a New South Wales District Court Judge in 1999 who seemed similarly unilluminated despite one of the strongest religious confession privilege statutes in the world. He found it inconceivable that his Parliament really intended to deny him access to confessional confidences. Suzanne McNicol has observed that one reason why the New South Wales parliament decided to create such a strong religious confession privilege statute was “sensible”1, was because it would “reduce…unnecessary friction between church and state”2. The Churches are similarly concerned that child abuse cases, which generate secular anger against ancient privileges, are not the perfect stage upon which to consolidate principled constitutional freedom for this manifestation of religious practice. Further research was prompted by the discovery that while evidence law texts almost universally denied religious confession privilege at common law, those denials were not borne out by the cases cited as authority for those denials. I developed a growing suspicion that several of the early revered text writers had simply quoted one another without independently verifying what the sources actually said. Though there were two monographs on religious confession privilege at common law3 and a Roman Catholic canon law masterpiece on the origin of the seal of confession4, I ultimately felt I had enough material to write a book of my own on the subject. No one had previously explained how the seal of confession in Catholic canon law had found its way into the common law, nor treated thoroughly the reasons why it was said to have been extinguished. This was territory where I was ill-equipped to go by myself, since my previous

1

McNicol, SB, Law of Privilege, Australia, Law Book Co, 1992, p 337. Ibid, pp 330, 337. 3 Baddeley, EL, The Privilege of Religious Confessions in English Courts of Justice, London, Butterworths, 1865; Winckworth, P, The Seal of the Confessional and the Law of Evidence, London, S.P.C.K., 1952. 4 Kurtscheid, TRB, A History of the Seal of Confession, Authorised translation by the Rev FA Marks, Edited by Arthur Preuss, St Louis, Missouri and London, B Herder Book Co, 1927. 2

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dissertations in law5 had only involved methodical historical research in common law records since case reporting began. I am grateful that the Law Faculty at Sydney University accepted my PhD enrolment. I enjoyed the part time study I did there until the resignation of my original supervisor led me to Gabriel Moens, a world expert on comparative law and religion. His mentoring and friendship, since I first met him more than twelve years ago as the Garrick Professor of Law at the University of Queensland, has been irreplaceable. I have met him again on some of his teaching stints at Loyola and Brigham Young Universities in the United States and more recently at Notre Dame and Murdoch Universities in Western Australia. Gabriel gave me the checklists that I needed to get unstuck and to complete the thesis. He did things that supervisors are not supposed to have to do with PhD students – he tidied my grammar, and painstakingly helped me chop up remaining long sentences when I thought I had finished all such editing. I am grateful that he was genuinely interested enough in my work to convince Murdoch University to see the thesis through to a worthy conclusion. But there are many others without whose help this book would not have materialized. At Auckland, Julia McMahon O’Higgins was the law school librarian when I was a law undergraduate in the 1970s. She was an absolute treasure when it came to understanding obscure historical citations. Shortly after I commenced researching towards the doctorate, she found me sitting in that University’s Law Library some 25 years after we had first met and she insisted I consult her whenever I felt the urge. She simply would not let me reimburse even the postage after she had spent hours finding obscure historical references which authenticated the true story of Friar John Randolf ’s demise6. Other great research helpers were: Eileen Crane, whose close friends at Harvard and Yale finally found for me the two missing first edition evidence law texts I could find nowhere else; Stephen E. Smith (now at Otago) rapidly helped me track down electronic copies of Canadian commentary while he was completing his first law degree at Queens, and Mark Durham took time away from his own doctoral work at Yale to help me track down yet another first edition evidence text. Carolyn Evans at Melbourne has made helpful comments about the UK chapter. Brett Scharffs at BYU reviewed an early draft of the US chapter as did another colleague who provided some additional material that enhanced the 5 “The Thomas Case: Aspects of Criminal Procedure in their Historical Perspective”, LLB(Hons) dissertation, Auckland University, 1981; “The Marketing of Law in English History: The Professional Self-Interest of Lawyers at Work”, M Jur thesis, Auckland University, 1993. 6 Though Sir Edward Coke cited his case as authority for his treason exception to religious confession privilege (Coke, Sir E, The Second Part of the Institutes of the Laws of England, New York, Garland Publishing Co, 1979, p 629), there was no trial and the Friar was murdered in prison after some years’ incarceration, by a fellow inmate.

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finished product. Paul Rishworth at Auckland improved the chapter on the law in Canada and New Zealand and Kurtis Read, a student at the University of Alberta Law School provided invaluable research assistance on the ground in Canada when my physical location in West Africa made that impossible for me in person. Shawn Boshoff and Trevor Keyes have provided research help in South Africa and Cora Hoexter at Wits helped me understand just what a sea change the 1996 Constitution has brought to the common law in South Africa. Rex Ahdar at Otago and I have sparred about the philosophy of freedom of religion for years, so he was the natural person to review and critically comment on the policy chapter. That chapter is much better because of his suggestions. But as with all such work, mine is the final responsibility for what has resulted. I have not done all my many helpers suggested and that fact alone will exonerate them from the errors that others will find. I must also acknowledge my Legal Assistant in Sydney, Alice Debchi, my secretary Dr. Susan Watkins and my wife Anita. Alice typed the original thesis, save a few pages. When I have typed, she has proofread and tidied the formatting because I know very little about the mysteries of word processing computer software. Sue’s experience and encouragement has kept me going – assuring me so often that my PhD academic struggles were not unique. Anita however, is the one who has borne the brunt of it all. Though I like to say that my thesis was largely written when I was already away from the family and from her on business in dingy hotel rooms on desert islands, Anita knows how many times she sacrificed time we might have spent together because I went downstairs, to the office on a Saturday – or to one more library. On a 2001 trip to England, she was the one who encouraged me to go to Oxford. There I found the original eighteenth and early nineteenth century first edition texts which no one would send me on interlibrary loan because they were too fragile and she took the photo of me on the floor of that empty library – surrounded by piles of musty books, oblivious to the world and completely absorbed because at last I had the original editions. She has been with me to all the law libraries I have physically used: Sydney, Melbourne, Auckland, New South Wales, Macquarie, QUT, Australian Catholic University, Utah, J Reuben Clark, and Oxford to name most but not all of them. And she sacrificed much of our summer vacation together in Sydney in January 2010 so that I could do the final work on the book. I am also grateful that Lindy Melman and her expert team in law and religion texts, believed in the project. Sydney, January 7, 2011

INTRODUCTION When John H Wigmore produced the first edition of his monumental work on evidence in the United States in 1904,1 he stated: It is perhaps open to argument whether a privilege for confessions to priests was recognised in common law courts during the period before the Restoration. The only available data appear to be an indecisive incident in the Jesuit trials under James I, and a statute of much earlier date and of ambiguous purport, together with the general probabilities to be drawn from the recognition of Papal ecclesiastical practices prior to Henry VIII. But since the Restoration, and for more than two centuries of English practice, the almost unanimous expression of judicial opinion (including at least two decisive rulings) has denied the existence of a privilege.2

Though the work has been both edited and revised since,3 the essential “no [religious confession] privilege at common law”4 message has not been varied and it has been accepted as an authoritative statement of the British common law by the majority of succeeding American lawyers.5 But Wigmore’s summary gloss upon religious confession privilege at common law is not a uniquely American interpretation. The majority of British and Australian evidence text writers have agreed with his conclusion,6 and he has also had significant direct influence in Australia.7

1

Wigmore, JH, A Treatise on the Anglo-American System of Evidence in trials at common law: including the statutes and judicial decisions of all jurisdictions of the United States and Canada, Boston, Little Brown, 1904. 2 Wigmore, JH, Evidence in trials at common law, Revised by John T McNaughton, Boston, Little Brown, 1961, Vol 8, p. 869. 3 1st edition 1904; 2nd edition 1923; 3rd edition 1940; McNaughton Revision in 1961 with a most recent 1999 supplement current as at the time of this writing. 4 The quoted words form part of the heading which introduces the quote in note 2 in the 1961 McNaughton Revision. 5 American writers who have cited Wigmore as authority for this proposition include Allred, VC, “The Confessor in Court” (1953) 13 The Jurist 2, 6; Callahan, MJ, “Historical Inquiry into the Priest-Penitent Privilege” (1976) 36 The Jurist 328, 329; Yellin, JM, “The History and Current Status of the Clergy-Penitent Privilege” (1983) 23 Santa Clara LR 95, 102; and Smith, MC, “The Pastor on the Witness Stand: Towards a Religious Privilege in the Courts” (1984) 29 Catholic Lawyer 1, 4. 6 For example, Heydon, JD, Cross on Evidence (6th Australian ed, 2000), p. 743; Lord Hailsham (ed), Halsbury’s Laws of England (4th ed, 1976), Vol 17, para 237, n 4; Stephen, JF, A Digest of the Law of Evidence (12th ed, 1948), p. 220; Buzzard, JH, May, R, and Howard, MN, Phipson on Evidence (12th ed, 1976), para 588. 7 For example, the Australian Law Reform Commission has stated that “[i]t is generally accepted that the better view of the common law cases is that no privilege is recognised as arising out of the priest-penitent (or minister-parishioner) relationship” though “the law in Ireland acknowledges such a privilege … formulated using Wigmore’s four conditions” (ALRC, Report No 26 (1985), Vol 1, para 202, p. 253).

2

Introduction

Originally written as a PhD thesis, it will be the purpose of this book to test this historical conclusion and summary against the primary materials which Wigmore and other text writers have used to support it. Those materials include the historical and canonical practices from which the common law evolved, and the common law decisions recorded from the genesis of legal reporting through to the present day. After the development of religious confession privilege in the common law has been traced, the book will identify the nature of the privilege that exists in Australia, the countries which make up the United Kingdom, the United States, Canada and New Zealand, and finally South Africa. The concluding chapter will then address the modern law reform question of whether there should be a religious confession either in twenty-first century common law or in statute. The analysis of the state of religious confession and communications privilege in the major English speaking common law jurisdictions of the world in the twenty-first century will conclude that a correct understanding of the history of these two privileges will confirm the finding that some form of religious privilege does exist after all, but that finding will be primarily premised in the modern commitment to free exercise of religion rather than out of pure respect to historical precedent. The pity is that even in the centuries since human rights began to be recognized as an integral part of individual human dignity, government authorities have largely ignored religious confession as an important manifestation of that that freedom of conscience which is arguably a non-derogable right of every human being. Readers of the book will learn from the historical materials which still exist, that there was a religious confession privilege at common law extant at the Restoration, but that contrary to the statements of almost every text writer who has ever addressed the subject, that such privilege has never been extinguished and thus survives to the present day. Because the text writers almost universally deny these assertions, primary materials are the focus of the book. For these purposes, primary materials means case law, canon law and established legal history. However before I set out the places where I have found those primary materials, it is necessary to state that readers will find more cases about legal professional privilege discussed in this work than they might expect in a book about religious confession privilege. That is because many text writers have conflated legal professional privilege and religious confession privilege. The book will explain that these two privileges have separate and discrete origins in common law. However, it is necessary to review cases about legal professional privilege to establish just what the facts were, to decide whether the conclusions drawn from them about religious confession privilege had any substance at all. Sometimes, the generalisations of the text writers may seem fair on a superficial review of the facts because a clergyman was involved. However, if it was claimed that a communication with a clergyman was entitled to “legal professional privilege” because he was consulted as a professional confidante despite

Introduction 3 the fact that no religious confession was made, then it is not accurate to draw a “no religious confession privilege” principle from the decision.8 Similarly, cases about confession to someone other than a member of the clergy,9 and cases about criminal confessions by members of the clergy,10 ought not to be generalised as authority against religious confession privilege either. The historical and canonical practices from which the common law evolved will be treated in detail because despite academic recognition that canon law has had a large influence on common law,11 the nature of that contribution has never been satisfactorily identified where religious confession privilege is concerned. Richard Nolan, the Irish barrister who contributed the article entitled “The Law of the Seal of Confession” to the original Catholic Encyclopedia in 1913,12 certainly strove to do just that. But his “Catholic” purpose and his muted conclusion against the existence of a modern religious confession privilege at common law, have had limited impact on legal scholarship. Bursell’s more recent claim that religious confession privilege has always existed and still exists,13 has similarly not attracted much attention in legal texts because it reads like a conservative Anglican apologetic.14 Others have been less complete in either their treatment of the canon law, or its historical antecedents. Finlason’s contribution in the editorial footnotes to his report of R v Hay15 in 1861 maintained that confessions in Anglican practice were sacramental and

8 These are not the facts of a specific case. It is the hypothetical conflation of several, including Anonymous (1693) Skin 404; 90 ER 179-180 and Greenlaw v King (1838) 1 Beav 137; 48 ER 890. 9 R v Gilham (1828) 1 Moody 186; 168 ER 1235 and R v Wild (1835) 1 Moody 452; 168 ER 1341. These cases may also be considered as cases about whether spiritual duress or inducement should make certain confessions inadmissible. They are discussed in detail in chapter four. 10 Randolph’s case (1413) as cited in Coke, Sir E, The Second Part of the Institutes of the Laws of England, New York, Garland Publishing Co, 1979, p. 629. The spelling of the surname of Friar John Randolph varies from Randolf to Randolph and to Randolphe. Except when I am quoting another source, I will use the “Randolph” spelling. 11 For example, Helmholz has observed that there are “three evident ways” in which the canon law and English common law related – they clashed, they cooperated and they reciprocally influenced one another (Helmholz, RH, Canon Law and the Law of England, London and Ronceverte, The Hambledon Press, 1987, p. 2). Milsom says that it was ecclesiastics with canonist learning “who guided the common law in its greatest formative period” (Milsom, SFC, Historical Foundations of the Common Law, London, Butterworths, 1969, p. 15). 12 Nolan, RS, “The Law of the Seal of Confession”, (1913) 13 Catholic Encyclopedia 649. 13 Bursell Judge, RDH, “The Seal of the Confessional”, Ecclesiastical Law Journal (1990) 84. 14 Note that liberal Anglicans hold that confession went out with the English Reformation. For example, Norman Doe quotes the 1938 Doctrine Commission as authority for his proposition that the 1603 canons only bind in conscience (Doe, N, The Legal Framework of the Church of England, Oxford, Clarendon Press, 1996, p. 354). JH Blunt (The Book of Church Law, 10th ed, London, New York and Bombay, Longmans Green & Co, 1905, p. 173) and Judge Rupert Bursell (“The Seal of the Confessional”, Ecclesiastical Law Journal (1990) 84, 87) state that the secrecy of confession has the virtual force of statute law and will concede only that it was used less frequently when it was made voluntary. See more detailed discussion in chapter three, infra, pp. 77–85. 15 R v Hay (1860) 2 Foster & Fin 4; 175 ER 933.

4

Introduction

that Hill J was wrong to have found Father Kelly in Hay guilty of contempt – in effect Finlason’s thesis was an early version of Bursell’s view that religious confession privilege existed in English law and still existed in 1861. Badeley’s monograph in 186516 was a very Catholic defence of religious confession privilege written in response to the publicity that accompanied R v Constance Kent,17 including the debate that the case occasioned in both houses of parliament.18 Winckworth’s essay, “The Seal of the Confessional and the Law of Evidence”19 concluded in 1952 only that “the question has never really been raised in any English court since the Reformation”.20 Hogan and Yellin writing respectively in 195121 and 198322 both doubted Wigmore’s suspicion that there was no religious confession privilege in Reformation pre-history,23 but did not consider whether that raised questions about the alleged non-existence of the privilege after the Reformation – they simply accepted that it does not exist thereafter.24 And though Wright and Graham’s more complete historical review25 disagreed with the Wigmore interpretation of the history,26 they effectively agreed with Nolan that the privilege was extinguished by institutionalised anti-Catholic prejudice after the seventeenth century.27 The book will relate the historical roots of the common law and customary canonical practices to the case law which evolved from them. That approach will enable a more balanced view and conclusion than results from Wigmore’s doubt of religious confession privilege in history and his denial of religious confession privilege in common law. The impact of the resulting understanding of this ancient privilege in a secular world which doubts any value premised solely in religious belief and practice will be analyzed. 16

Badeley, E, The Privilege of Religious Confessions in English Courts of Justice considered in a letter to a Friend, London, Butterworths, 1865. 17 R v Constance Kent (1865), unreported but referred to in Attlay’s Famous Trials of the Nineteenth Century, 1899, p. 113. See also Tiemann, WH and Bush, JC, The Right to Silence, 2nd ed, Nashville, Abingdon Press, 1983, pp. 117–120, and Phipson, SL, Best’s Law of Evidence, 11th ed, London, Sweet & Maxwell, 1911, pp. 565–566. The absence of any legal report of the case is the understandable consequence of Constance Kent’s guilty plea following the depositions hearing where the religious confession privilege issue was raised. 18 Reported in detail in Nolan, RS, “The Law of the Seal of Confession”, Catholic Encyclopedia 13 (1913) 649, 658. The parliamentary debate in the House of Lords is discussed infra in chapter four, pp. 116–120. 19 Winckworth, P, The Seal of the Confessional and the Law of Evidence, London, S.P.C.K., 1952. 20 Ibid, p. 15. 21 Hogan, EW, Jr, “A Modern Problem on the Privilege of the Confessional” (1951) 6 Loyola LR 1. 22 Yellin, JM, “The history and current status of the clergy-penitent privilege” (1983) 23 Santa Clara LR 95. 23 Hogan, op cit, pp. 7–13; Yellin, op cit, pp. 96–101. 24 Hogan, op cit, p. 13; Yellin, op cit, p. 101. 25 Wright, CA, and Graham, KW, Federal Practice and Procedure: Evidence, 3rd Ed., St Paul Minnesota, West Publishing Co, 1992, chapter six, section 5612. 26 Ibid, pp. 29–30, 35. 27 Ibid, p. 42.

Introduction 5 The book divides the subject into twelve chapters. In chapter one, I observe that the misinterpretation of cases in 1790,28 182829 and 188130 has significantly misrepresented common law on religious confession privilege ever since. Even though these errors have been much repeated in subsequent commentary and judicial decisions, I suggest that a complete review of religious confession privilege is required – a review which takes account of what the historical practices were and what the cases actually said. Chapters two and three will deal with the history of religious confession and of religious confession privilege in England. In chapter two, I commence by identifying the shifts in perspective required of modern lawyers to understand historical legal institutions and practice, with particular recognition of the modern difficulty in understanding a society where church and state were undivided. I then use Coke’s commentary31 upon Edward II’s Statute Articuli Cleri32 in the fourteenth century and his prosecution arguments as AttorneyGeneral in Garnet’s case,33 to identify recognition of religious confession in common law to the beginning of the seventeenth century. That recognition will necessarily introduce consideration of the influence of canon law and ecclesiastical religious confession practice upon common law both before and after the English Reformation. In chapter three I will then identify the development of the canon law pertaining to religious confession and will trace the evolution of the Catholic seal of confession and its diluted reception into Anglican canon law as a part of the law of England. In the next three chapters, four, five and six, I discuss the common law after Garnet’s case. In chapter four, I begin treatment of the common law between the seventeenth and twentieth centuries with the insight that the law of evidence has largely grown up “around” religious confession privilege. That insight is helpful in explaining why it is that the evidence law texts treat religious confession privilege in a superficial way as if religious confession privilege were a sub-category of legal professional privilege. That categorisation also explains why religious confession privilege has often been confused with legal professional privilege, and why cases about irregular confession and confessions obtained under duress have not been distinguished from cases about religious confession privilege. Chapter four concludes that the residual inaccuracy that lingers in evidence law texts cannot be said to have extinguished religious confession privilege from the common law.

28 R v Sparkes (1790), unreported but cited by Garrow, counsel for the plaintiff in Du Barré v Livette (1791) 1 Peake 108, 170 ER 96. 29 R v Gilham (1828) 1 Moody Cr Cas 186, 168 ER 1235. 30 Wheeler v LeMarchant (1881) 17 Ch D 675. 31 Coke, Sir E, The Second Part of the Institutes of the Laws of England, New York, Garland Publishing Co, 1979. 32 9 Edward II St.1. 33 Garnet’s case (1606) 2 Howell’s State Trials 217.

6

Introduction

In chapter five I explain how better analysis of the cases discussed in chapter four reveals them as authority for the proposition that there are two distinct privileges arising at common law from religious confession practice. These are, first, a narrow religious confession privilege, and secondly, a broader, non-discriminatory religious communications privilege. The existence of this broader privilege sourced in judicial discretion which weighs competing public policies, is demonstrated with late twentieth century decisions from the English House of Lords34 and the Supreme Court of Canada.35 In chapter six I discuss the theories that have been advanced to explain how or why religious confession privilege was lost to the common law. Because Sir George Jessel MR’s error in his obiter statements against the privilege in Wheeler v LeMarchant36 will have been identified in chapter one, that theoretical justification for the extinction of the privilege will only be refreshed. Similarly brief reference will be made to the idea that the English Reformation somehow extinguished religious confession privilege since that theory will have been discredited in chapter two. But the suggestions that pure anti-Catholic prejudice and the need for a religious confession privilege statute demonstrates a void at common law37 will be examined in detail and dismissed. In chapter seven of the book I review the Australian authority relating to religious confession privilege, though noting that there is no binding decision such as would conclusively answer the question, “Is there a religious confession privilege at common law in Australia?” The position with respect to religious confession privilege in Australia is complicated because it comprises nine jurisdictions, seven of which have religious confession privilege statutes with different antecedents and two jurisdictions with no statute at all. That uncertainty is compounded by a complete absence of decided cases on religious confession facts in Australia’s residual common law jurisdictions.38 But obiter dicta comments about religious confession privilege by Sir Owen Dixon in the High Court39 and Chief Justice Spigelman in the New South Wales Court of Criminal Appeal40 are closely reviewed for their likely contribution to a common law decision on religious confession privilege, should such a case arise in the future. In the absence of any conclusive authority on the point, I then review other ideas that are likely to have some influence on whether a common law religious confession privilege would be recognised in Australia or not.

34 35 36 37 38 39 40

D v NSPCC [1978] AC 171. R v Gruenke (1991) 3 SCR 263. Wheeler v LeMarchant (1881) 17 Ch D 675. R v Gruenke (1991) 3 SCR 263, 287–288 per Lamer CJ. Queensland, Western Australia and South Australia at the time of this writing. McGuinness v Attorney-General (Vic) (1940) 63 CLR 73. R v Young (1999) 46 NSWLR 681.

Introduction 7 Those ideas include insights (a) that recent judicial statements to effect that common law privileges or immunities41 cannot be abrogated without clear and unambiguous statutory words, may protect common law religious confession privilege if a court could be convinced that religious confession privilege was indeed well established; (b) that existing religious confession privilege statutes in Victoria,42 Tasmania,43 the Northern Territory,44 New South Wales45 and the Commonwealth46 would exert “gravitational pull”47 in Australian jurisdictions without such statutes;48 and (c) the notion that Australia’s commitment to various international human rights instruments which affirm constitutionally established freedom of religious belief in Australia may provide some protection for religious confession privilege in the future. I conclude that if the High Court of Australia is ever asked to decide a religious confession privilege case in a common law jurisdiction, it will likely follow the approach taken by the Supreme Court of Canada and prefer a “case by case” discretionary religious communications privilege49 over a fixed religious confession privilege category.50 That is not so much because Australia’s constitutional protection of freedom of religion51 is equivalent to Canadian charter

41 Particularly in Daniels Corporation v ACCC (2002) 192 ALR 561 and in R v Young (1999) 46 NSWLR 681. 42 The original Victorian statutory religious confession privilege was created by the Evidence Act 1890, c 55, 54 Vict No 1088. The current statute is the Evidence Act 1958, section 28(1). 43 The original Tasmanian statutory religious confession privilege was the Evidence Act 1910, section 96. However, Tasmania adopted the Uniform Commonwealth Evidence Act in 2001 (Tasmanian Evidence Act 76/2001) and it was proclaimed effective 1 July 2002. 44 The Evidence Ordinances 1939, section 12. 45 The Evidence (Religious Confessions) Amendment Act 1989 inserted section 10(6) into the New South Wales Evidence Act 1898. The current provision is section 127 of the New South Wales Evidence Act 1995. 46 The current provision is section 127 of the Commonwealth Evidence Act 1995. The Uniform Commonwealth Evidence Act was adopted by the Australian Capital Territory in 1995, by Tasmania in 2001 and Norfolk Island in 2004. 47 The quoted words are original to Mason P in Akins v Abigroup Ltd (1998) 43 NSWLR 539, 547–548. Both Beazley, JA and James, J reference the concept in discussion of a proposed common law sexual assault communications privilege in R v Young (1999) 46 NSWLR 681, respectively at p. 719, para 205 and p. 743, para 326. 48 Queensland, South Australia and Western Australia. 49 R v Gruenke (1991) 3 SCR 263. 50 Gruenke was decided by a majority of 7-2. The minority (Heureux-Dube and Gonthier JJ) preferred that a fixed religious confession privilege category be recognised rather than a discretionary privilege because the lack of certainty implicit in a discretionary approach could have an undesirable chilling effect on religious practice. 51 Section 116. The Commonwealth of Australia Constitution Act 1900 (63 & 64 Vict, c 12) was passed by the Imperial Parliament in July 1900 and was proclaimed to take effect on 1 January 1901.

8

Introduction

protection,52 but because such a broader accommodative approach resonates with Australian multi-cultural values and international human rights obligations.53 However, though I suggest that the High Court of Australia might recognise religious confession privilege at common law if a suitable case arose for adjudication, I concede that Australian trial courts and even intermediate Courts of Appeal54 in Australia may not answer so confidently. Chapter Eight discusses the nature of the law relating to religious confessions and other confidential communications in the United Kingdom since the advent of the Human Rights Act of 1998. Though the historical analysis provided by this book provides material that would have enabled courts in the United Kingdom to consider religious confession and confidential communications in a more informed way than was previously possible, the direct applicability of the freedom of religion required under the European Convention by virtue of the Human Rights Act has changed the issues that UK courts must consider when religious confession privilege cases arise in the future. This chapter therefore analyses the tools provided by the Human Rights Act to ensure that European Convention Rights are protected in Britain in practice – and how those tools are being used by the courts in freedom of religion cases. There is detailed consideration of the Courts’ use of its newly broadened interpretive power under section 3 and explanation of both when the declaration of incompatibility provided to the Courts under section 4 has been used and how Parliament has responded. Since there have been no UK cases which concern confidential religious communications claims since 1998 or any claims enabling significant analogy, there is also discussion of both European cases which concern Article 9 of the European Convention and how they might be applied in Britain. And it is concluded that European Convention considerations will weigh more heavily with the UK courts than will the opportunity to recognize a common law religious confession privilege for the historical reasons elucidated in this book. But, counter-intuitively, I opine that the European ‘margin of appreciation’ doctrine, will likely leave UK penitents with no more certainty that their confidences will be respected under the Human Rights Act than they have been in the past. That is because the ‘margin of appreciation’ will allow UK courts to exercise a considerable degree of discretion when reviewing claims for confidential religious communications privilege. 52

The Canadian Charter of Rights and Freedoms came into force as Schedule B to the Canada Act 1982 (UK) Clause 11 on 17 April 1982. In Canada it is known as the Constitution Act 1982. 53 See particularly the High Court of Australia judgements in Daniels Corporation v ACCC [2002] 192 ALR 561. 54 These words were used to describe the New South Wales Court of Criminal Appeal by Spigelman CJ in R v Young (1999) 46 NSWLR 681, at p. 698, para 84 and at p. 699, para 88.

Introduction 9 In practice, despite the intuition that protection of religious freedom as a human right under the European Convention would surely extend to the time honoured practice of religious confession, the ‘margin of appreciation doctrine’ will still allow UK courts to weigh the competing public interests in disclosure versus confidentiality. The application of the European Convention in the UK does not provide a religious freedom protection that is even close to non-derogable. Modern European notions of proportionality and the concomitant need to respect state policy, will still be available to defeat religious privilege claims perhaps in the place of the more traditional idea that the courts must have all the evidence if they are to properly administer justice. The law with respect to religious confession privilege in Scotland and Wales is then identified as the same as that in England. The Irish position gets only a little more treatment in this chapter, not because the law is the same, but because the Irish historical position which provides ecumenical protection for all religious confidences has been thoroughly set out in chapter six and the European Convention will operate only to confirm that position. Chapter nine sets out the current law in relation to confidential religious communications in the United States. The chapter begins with a detailed analysis of the case of People v Phillips in New York in 1828, because that case is the watershed from which flow the federal common law and the religious confession privilege statutes in all fifty states. Though modern text books about US evidence law generally refer to the Phillips case with only a passing footnote, Mayor Clinton’s unanimous reasoning is considered carefully since he sought his authority in both the pre-existing English common law and in the free exercise of religion provided in the then 1777 New York State Constitution. When his common law reasoning is properly understood, it is not surprising that the states have moved to protect religious confession privilege with statutes subsequently, because his analogies to self-incrimination decisions in England were unconvincing. And it is noteworthy that his apparently ecumenical understanding of religious freedom under the New York State Constitution looks suspiciously like a relatively undisguised example of Christian religious prejudice. The continuing modern US federal common law in relation to religious confession privilege still premised on the Tenth Circuit’s 1958 decision in Mullen v United States - developing dicta by the Supreme Court in Totten v United States in 1876 - is then traced through to the present day. And that recognition of a broad and ecumenical federal religious communications privilege, is then shown to resonate with the religious confession privilege which exists in all the states though by virtue of a multiplicity of different statutes. That largely coincident legal position is shown to have evolved gradually. Until the 1960s in the aftermath of World War 2, all the available statutes were narrowly construed. But “[t]he horrors of the Holocaust, the experience of the

10

Introduction

war years, and the propaganda demands of the Cold War”55 are shown to have “made people more appreciative of the virtues of religious pluralism and less tolerant of anything that smacked of religious persecution by the state”.56 And chapter nine ends with a discussion of the impact of child reporting statutes that abrogate clerical confidentiality in various degrees. The conclusion is that those statutes have had minimal impact either upon religious confession practice or judicial interpretation of the underlying broad ecumenical privilege. Chapter Ten explains the law in relation to confidential communications in both Canada and New Zealand, countries related as inheritors of English Common law because they are both part of the British Commonweath but also because they both have relatively recent appellate court decisions which treat religious confession privilege. In Canada, the discussion is a summary since the relevant appellate case – R v Gruenke in the Supreme Court in 1991 – has been analysed in some detail earlier in chapter five of the book. But since that case dealt with a religious confession privilege from a common law jurisdiction, there is discussion of the nature and origins of the religious confession privilege statutes in Newfoundland and Quebec. In New Zealand, the evolution of the religious confession privilege from its first incarnation in 1885 (in seeming response to Sir George Jessel’s obiter statements against such privilege in Wheeler v LeMarchant in 1881) through revisions in 1890, 1980 and again in 2006 are first examined. And that is followed with analysis of the Court of Appeal’s decision in R v Howse in 1981. While technically that decision might now be considered redundant since New Zealand’s Human Rights Act was passed 9 years later in 1990 and because the statute has been completely revised since, Sir Robin Cooke’s prescient ecumenical interpretation of what was a fairly traditional statute, has enduring persuasive power not least since he was later elevated to the Privy Council and the House of Lords. Chapter Eleven treats the law relating to religious confession privilege in South Africa. The current ‘last word’ in case law is the 1976 decision of the Appellate Division of the Supreme Court in Smit v Van Niekerk.57 But that decision founded upon an interpretation of legislative policy taken at the height of the apartheid era, will clearly be revisited in light of the provisions of the new Constitution when an appropriate case presents itself, as the Constitutional Court said directly in 2002 in S v Bierman.58 For the new 1996 Constitution has made a sea change in the legal landscape of South Africa. For though it has not swept away all the previous common law, none of that

55

Wright, CA, and Graham, KW, Federal Practice and Procedure: Evidence, 3rd ed, St Paul Minnesota, West Publishing Co, 1992, § 5612, p. 49. 56 Idem. 57 Smit v Van Niekerk, (1976) (4) SA 293 (A). 58 S v Bierman (2002) 5 SA 243 (CC)

Introduction 11 jurisprudence can be relied on unless it is also kosher under the new Constitution. The consequence is that unless a member of the clergy has waived it, religious confession privilege will likely be upheld in the future in South Africa. Chapter Twelve is a policy chapter. It discusses the question of whether there should be a confidential religious communications privilege at all in the twenty-first century, since many of the countries under consideration in the foregoing chapters have unwound many traditional accommodations of religion in the last half century. Sir George Jessel’s view that such a privilege is innately antithetical to the judicial need to have all relevant evidence is discussed afresh. But it is noted that his view stands in stark contrast to the view of many other judges and the famous utilitarian philosopher, Jeremy Bentham who was in all other respects, an ardent opponent of all privilege including legal professional privilege. A list of possible policy rationales for a contemporary confidential religious communications privilege is then constructed from divers sources including L’Heureux-Dubé J’s minority view in R v Gruenke; McNicol’s “Law of Privilege”; and Wright and Graham’s “Federal Practice and Procedure”. That list is then considered in detail along with suggestions that a religious confession privilege can also be justified in policy by theological considerations. Ultimately however, Wigmore’s intuition that a confidential religious communications or confession privilege will only be justified to the extent that the relevant society values freedom of religion, is found compelling. The book concludes with the finding that there always has been a religious confession privilege at common law. Further, that even though judges looking for relevant evidence may have been inclined to narrow its scope, that judicial habit does not justify the textual denials that religious confession privilege has ever existed.

CHAPTER ONE

REVIEW OF RELIGIOUS CONFESSION PRIVILEGE IN EARLY EVIDENCE TEXTS Introduction Wigmore is a relative latecomer to the field of evidence law commentary.1 He credits Thayer and Stephen as his authoritative predecessors,2 but there were many others, and the number of editions which were published of the more popular texts3 manifest the demand for understanding of this new body of law.4 This book recognises that development at the beginning of the nineteenth century in the pioneering work of Peake,5 who was also the reporter of the alleged leading case on the subject of religious confession privilege – Du Barré v Livette.6 Peake’s conclusion that “a confession to a clergyman or priest … [is] not within the protection of the law”7 was followed as gospel by contemporary text writers and judges alike, without any apparent critical review of his conclusion from the case cited.

1 The first edition of his monumental work on Evidence Law was published in 1904 (Wigmore, JH, A Treatise on the Anglo-American System of Evidence in trials at common law: including the statutes and judicial decisions of all jurisdictions of the United States and Canada, Boston, Little Brown, 1904). 2 Wigmore, JH, op cit, Preface to the First Edition, p. 2. 3 For example, Roscoe published the original text of Digest of the Law of Evidence in 1827 (London, Joseph Butterworth and Son), but Powell’s 18th edition was still in demand when it was published in 1907 (London, Stevens and Sweet and Maxwell). Similarly, the 11th edition of Taylor’s Treatise on the Law of Evidence, originally published in 1848 (London, A Maxwell & Son), was published in 1920 (Matthews, JB and Spear, GF, A Treatise on the Law of Evidence by his Honour the Late Judge Pitt Taylor, London, Sweet & Maxwell Ltd). 4 Sir James Stephen observed in 1876 “that the modern Law of Evidence is not so old as the Reformation, but has grown up by the practice of the Courts, and by decisions in the course of the last two centuries” (Stephen, JF, A Digest of the Law of Evidence, London, MacMillan and Co, 1876, p. 172). 5 Professor Julius Stone (whose work was revised and published by WAN Wells after his death) notes that the pioneering texts on the law of evidence were those written by Peake (A Compendium of the Law of Evidence, London, E&R Brooke and J Rider & E Rider, 1801), Phillipps (A Treatise on the Law of Evidence, London, E & R Brooke and J Rider and by E Rider, 1814) and Starkie (A Practical Treatise of the Law of Evidence and Digest of Proof in Civil and Criminal Proceedings, London, J & WT Clarke, 1824). These are discussed infra in chapter four, pp. 93–97 in relation to the development of the common law concerning religious confession privilege after the seventeenth century. The influence of Peake’s original work on the development of the law of evidence where religious confession privilege is concerned, is discussed in infra, pp. 16–18. 6 Du Barré v Livette (1791) 1 Peake 108; 170 ER 86. 7 Peake, op cit, Vol 1, p. 175.

14

Chapter One

When Park J adopted Peake’s summary of the law in R v Gilham8 in 1828, he compounded the problem. For Park J’s generalisation of Peake’s conclusion against religious confession privilege9 as authority for the admissibility of evidence allegedly obtained under spiritual duress in R v Gilham, was thereafter cited as the leading authority against any religious confession privilege. Indeed, Park J’s obiter statement against religious confession privilege in R v Gilham endured as the most authoritative word upon the subject until Sir George Jessel’s several obiter comments against religious confession privilege in the English Court of Appeal between 187610 and 1881.11 However Winckworth has suggested that Peake’s influence is evident in even Sir George Jessel’s dictum in Wheeler v LeMarchant for he observes “how closely Lord Jessel [sic] followed Peake’s dictum”.12 This chapter will review these three influential textual and judicial conclusions against the primary materials from which they were drawn, to enable assessment of their validity as a true statement of the common law in the nineteenth century. The question of whether the errors identified invalidate the common law as thereafter developed, will be deferred till later in the book, after all of the other influences upon that common law development have also been considered. Thus insulated, the prevalent nineteenth century legal view of religious confession privilege at common law will then be weighed against the historical and canonical materials from which the common law grew – the subject of chapters two and three. However chapter one will establish that a reconsideration of the nineteenth century common law on religious confession privilege is in order. The Error in R v Sparkes13 Du Barré v Livette14 was a case about legal professional privilege. The issue was whether an interpreter used by defence counsel in a case of jewellery theft, could be subpoenaed to provide evidence of a conversation between Livette

8

R v Gilham (1828) 1 Moody 186; 168 ER 1235. R v Gilham (1828) 1 Moody 186, 198; 168 ER 1235, 1239. 10 Anderson v Bank of British Columbia (1876) LR 2 Ch D 644. 11 Wheeler v LeMarchant (1881) 17 Ch D 675. Though Sir George Jessel MR’s decision in Slade v Tucker (1880) 14 Ch D 824 is sometimes also referenced as authority against religious confession privilege, the case contains no express reference to that privilege and simply denies that professional privilege extends to puirsuivants of the Herald’s College. 12 Winckworth, P, The Seal of the Confessional and the Law of Evidence, London, S.P.C.K., 1952, p. 14. Note that Sir George Jessel MR never became a peer of the realm, which is not surprising in the nineteenth century given his Jewish descent (Simpson, AWB (ed), Biographical Dictionary of the Common Law, London, Butterworths, 1984, p. 281; Lee, S, (ed), Dictionary of National Biography, London, Smith Elder & Co., 1908, Vol X, p. 805). 13 Unreported but referred to in Du Barré v Livette (1791) 1 Peake 108; 170 ER 86. 14 Du Barré v Livette (1791) 1 Peake 108; 170 ER 96. 9

Religious Confession Privilege in Early Evidence Texts 15 (one of the defendants) and his defence counsel. Lord Kenyon CJ gave judgement as follows: [T]he relation between attorney and client is as old as the law itself. It is absolutely necessary that the client should unbosom himself to his attorney, who would otherwise not know how to defend him. In a case like the present, it is equally necessary that an interpreter should be employed … everything said before that interpreter was equally in confidence … he was the organ through which the prisoner conveyed information to the attorney, and … it ought equally to remain locked up in the bosoms of those to whom it was communicated.15

Straightforward enough, but the case has religious confession privilege interest because the plaintiff ’s counsel raised in his argument an unreported case one year previous (R v Sparkes), where “Mr Justice Buller on the Northern circuit”16 had permitted a confession of the crime indicted made by a papist prisoner to a Protestant clergyman “to be given in evidence on the trial”, with the result that the prisoner “was convicted and executed”.17 Plaintiff counsel adduced the case to show that confidentiality per se did not protect communications. Accordingly, since the interpreter was not the beneficiary of any recognised privilege, his evidence should be admitted. Because the Sparkes’ case report is not available, we can only conjecture at the reasons why Mr Justice Buller denied the claim of religious confession privilege made for Sparkes.18 What is more enduring, is that even though Lord Kenyon CJ distinguished R v Sparkes on its facts19 and said that the religious communication in that case was not essential, he still said he would “have paused before [he] admitted the evidence there admitted.20 Clearly Lord Kenyon CJ had a different view of religious confession privilege than had Buller J only one year previously. Buller J appears to have considered that established authority prevented any extension of the attorney privilege.21 15

Du Barré v Livette (1791) 1 Peake 108, 110; 170 ER 96, 97. Du Barré v Livette (1791) 1 Peake 108, 109; 170 ER 96, 97. 17 Idem. 18 For example, like Sir Edward Coke who had prosecuted at Henry Garnet’s trial (Garnet’s case (1606) 2 Howell’s State Trials 217, 245–246), Buller J may have considered that the confession in R v Sparkes was not a “sacramental confession” since a papist cannot make a sacramental confession to anyone other than a Catholic priest. If that were true, the communication in R v Sparkes arguably might not qualify as a religious confession at law on theological grounds. However, in light of the firm position Buller J took on the narrow scope of legal professional privilege in Wilson v Rastall (1792) LTR 753; 100 ER 1283; (1775–1802) All ER 597 (discussed in more detail in chapter four, pp. 104–105), it seems unlikely that Buller J was making a technical theological distinction. 19 Lord Kenyon CJ chose not to accept plaintiff counsel’s submissions on the basis that “this case materially differs from that cited” and the prisoner in the Sparkes case did not need to make that communication to enable his attorney to adequately defend him (Du Barré v Livette (1791) 1 Peake 108, 110; 170 ER 96, 97). 20 Du Barré v Livette (1791) 1 Peake 108, 110; 170 ER 96, 97. 21 Buller J later said there were “cases where it [was] much to be lamented” that privilege for confidences did not extend (Wilson v Rastall (1775–1802) All ER 597, 600). Since he noted that 16

16

Chapter One

Though it is surprising that Peake (who reported the Du Barré v Livette case, and who also authored evidence texts titled Nisi Prius Cases and A Compendium of the Law of Evidence) should prefer Buller J’s view, it appears that Peake’s opinion as the commentator has endured. For not only did Starkie22 and Park J23 expressly follow Peake, but a whole line of other commentators did so as well,24 until Sir George Jessel’s obiter opinions upon religious confession privilege in 1876 and 188125 found greater favour with contemporary commentators.26 To demonstrate and put the point beyond any doubt, Peake’s commentative conclusion that “a confession to a clergyman or priest … [is] not within the protection of the law”27 was followed by Phillipps in the 181528 second and in the 1843 ninth editions of his Treatise on the Law of Evidence;29 Roscoe in the 1827 original text of his often revised Digest of the Law of Evidence30 (without variation in the conclusion either in the fifteenth edition31

a confidential privilege in respect of communications to a medical person in the Duchess of Kingston’s case ( (1776) 20 Howell’s St Trials 355) had been declined, it is evident that he considered he was following an established and broad rule of precedent that confined confidential privilege to “attornies” and their clients. 22 Starkie, T, A Practical Treatise on the Law of Evidence, London, J & WT Clarke, 1824, cited by Park J along with Peake as one of his authorities against the existence of religious confession privilege in R v Gilham (1828) 1 Moody 186, 198; 168 ER 1235, 1239. 23 R v Gilham (1828) 1 Moody 186; 168 ER 1235. 24 See infra, pp. 16–18. 25 While Sir George Jessel MR opined upon religious confession privilege in both Anderson v Bank of British Columbia (1876) LR 2 Ch D 644 and Wheeler v LeMarchant (1881) 17 Ch D 675, the latter is more frequently cited. 26 The first edition of SM Phillipps’ Treatise on the Law of Evidence in 1814 (published in London by E & R Brooke & J Rider, and by E Rider) interprets Du Barré v Livette as authority only for the proposition that “[a] person who acts as interpreter between an attorney and his client, stands precisely in the same situation as the attorney himself, and under the same conditions of secrecy” and does not generalise the conclusion as Peake had done as early as 1801. But when the second edition of Phillipps’ work was published a year later in 1815, the conclusion that privilege does not extend outside the legal profession had been generalised to read “[t]his privilege extends to the three enumerated cases of counsel, solicitor, and attorney; but it is confined to those cases alone” (Treatise on the Law of Evidence, 2nd ed, London, J Butterworth and Son, 1815, p. 104). 27 Peake, T, A Compendium of the Law of Evidence, London, E & R Brooke & J Rider, 1801, p 128. This statement was still being repeated word for word in the 5th edition in 1822 (London, J & WT Clarke). 28 Phillipps, SM, Treatise on the Law of Evidence, 2nd ed, London, J Butterworth and Son, 1815, p. 104, where he wrote simply that “this privilege extends to the three enumerated cases of counsel, solicitor and attorney [but not elsewhere, where] … it is much to be lamented that the law of privilege is not extended”. His first edition in 1814 had not so generalised the precedential rule. See note 26 supra. 29 Phillipps, SM, Treatise on the Law of Evidence, 9th ed, London, Saunders and Benning, 1843, Vol 1, p. 165, where he says more simply, “A confession to a clergyman is not privileged.” 30 Roscoe, H, A Digest of the Law of Evidence, London, Joseph Butterworth and Son, 1827, p. 72, where he said that “physicians, surgeons and divines are bound to disclose [confidential] communications”. 31 Hawke, A, Roscoe’s Digest of the Law of Evidence,15th ed., London, Stevens and Sons & Sweet and Maxwell Ltd, 1928, p. 178, where it was said, “Other professional persons, whether physicians, surgeons or clergymen, have no such privilege”.

Religious Confession Privilege in Early Evidence Texts 17 in 1928 or the eighteenth edition of Roscoe’s Nisi Prius32 in 1907); Gresley in his Treatise on the Law of Evidence in 1827,33 Taylor in his Treatise on the Law of Evidence in 184834 and in the eleventh edition in 1920;35 Powell in the 1859 second edition of his The Principles and Practice of the Law of Evidence,36 (and by W Blake Odgers in the 1910 ninth edition called Powell’s Principles and Practice of the Law of Evidence37); Hageman in his 1889 Privileged Communications as a Branch of Legal Evidence;38 and Phipson in the 1892 first edition of his Law of Evidence39 (though Phipson later reconsidered his research when he edited the eleventh edition of Best’s Law of Evidence in 191140); but Peake himself was cited as one of the authorities in Phillipps’ 181541 and 184342 editions. Peake’s decision to cite the Duchess of Kingston’s case as one of the authorities for the absence of both clerical and medical privileges43 (though the Duchess’s case only dealt with medical privilege), seems

32 Powell, M, ed, Roscoe’s Nisi Prius, 18th ed, London, Stevens and Sweet and Maxwell, 1907, p172, where it was said, “So physicians, surgeons and divines are not privileged from compulsive disclosures of communications, howsoever confidential”. 33 Gresley, RN, A Treatise on the Law of Evidence, Philadelphia, Nicklin PH & Johnson T, 1837, p. 281, where Gresley said that “the still more sacred confidence which criminals often repose in their spiritual adviser receives no recognised protection”. 34 Taylor, JP, A Treatise on the Law of Evidence, London, A Maxwell & Son, 1848, Vol 1, p. 618, where he said, “[t]hus clergymen and medical men are bound to disclose any information, which by acting in their professional character they have confidentially acquired”, though he does discuss the conflicts which this strict rule invokes in its contest with the canonical rules of both the Catholic and Anglican churches (ibid, pp. 619–621). 35 Matthews, JB & Spear, GF, A Treatise on the Law of Evidence by His Honour the Late Judge Pitt Taylor, London, Sweet & Maxwell Ltd, 1920, Vol 1, pp. 622–624, where His Honour’s statement of the law is not varied at all and his discussion of canon law is merely reworded in part with no effective change in meaning. 36 Powell, E, The Principles and Practice of the Law of Evidence, London, John Crockford, 1859, pp. 79–80, where Powell says, “[t]he rule of privileged communications … does not extend to communications made confidentially to stewards, medical men or clergymen”, though he does note judicial “indisposition to receive communications made to clergymen as such”. 37 Odgers, WB, Powell’s Principles and Practice of the Law of Evidence, 9th ed, London, Butterworth & Co, 1910, where Odger’s rearranges the original Powell words, but not the meaning. 38 Hageman, JF, Privileged Communications as a Branch of Legal Evidence, Littleton Colorado, Fred B Rothman & Co, reprint of the 1889 edition, pp. 122–125, where he says “[t]he clerical minister, or priest … is not privileged as attorneys and legal advisers are … in the absence of statutory protection, clergymen are bound to disclose any information acquired by them confidentially in their professional character”. 39 Phipson, SL, The Law of Evidence, London, Stevens and Haynes, 1892, p. 109, where he says, “[p]rofessional privilege is strictly confined to the case of legal advisers; and does not extend to that of doctors, priests, confidential friends, clerks, stewards or pursuivants”. 40 Phipson, SL, Of the Law of Evidence by the Late WM Best, 11th ed, London, Sweet & Maxwell, 1911. 41 Phillipps, SM, Treatise on the Law of Evidence, London, J Butterworth and Son, 1815, p 104. 42 Phillipps, SM, Treatise on the Law of Evidence, 9th ed, London, Saunders and Benning, 1843, Vol 1, p. 165. 43 Peake, T, A Compendium of the Law of Evidence, 5th ed, London, J & WT Clarke, 1822, Vol 1, p. 175.

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also to have profoundly influenced the first edition of Roscoe’s Digest in 182744 and the second edition of Powell’s Principles and Practice in 1859,45 since those authors cite the Duchess’s case as their only or principal authority (respectively) for the absence of a clerical privilege. Peake’s indirect influence on generations of subsequent judges and commentators cannot be fully calculated, though since his text is cited, he is certainly partly responsible for Park J’s proposition that R v Sparkes conclusively decided46 that “a minister is bound to disclose what has been revealed to him as a matter of religious confession”.47 The Error in R v Gilham 48 Richard Gilham was “tried and convicted … in 1828 … for the wilful murder of Maria Bagnall … but [sentence] was respited … in order that the opinion of the Judges might be taken whether the various confessions of the prisoner, after his interviews with the chaplain, ought … to have been received in evidence”.49 Gilham and Maria Bagnall had both been servants in the house of Mrs Coxe at Bath. Gilham had been interviewed on various occasions about the murder, including an examination at the Coroner’s inquest into Maria Bagnall’s death. The day after he was arrested, he admitted having stolen goods from Mrs Coxe, his employer, but steadfastly denied the murder, though he told the gaoler that he thought he would be hanged for his thefts. The gaoler told him not to “add lies to crime”,50 expressing his firm opinion that Gilham was guilty of Maria Bagnall’s murder as well, and suggesting that Gilham might find solace in reading the Bible and in talking with the chaplain of the gaol as a spiritual advisor. At length, Gilham accepted the gaoler’s invitation to meet the chaplain, and two extensive interviews with him on the same day followed. In particular, the chaplain emphasised to Gilham the need for complete repentance, which

44 Roscoe, H, A Digest of the Law of Evidence, London, Joseph Butterworth and Son, 1827, p. 72. 45 Powell, E, The Principles and Practice of the Law of Evidence, London, John Crockford, 1859, p. 79. 46 While they do not cite the Peake commentary that Park J cited, or indeed R v Sparkes, in citing R v Gilham as authority for the proposition that there is no religious confession privilege, JP Taylor (A Treatise on the Law of Evidence, London, A Maxwell & Son, 1848, Vol 1, p. 618), Edward Smirke’s 10th ed of Roscoe’s Nisi Prius (London, V & R Stevens and Sons & H Sweet and W Maxwell, 1861, p. 142), JF Hageman (Privileged Communications as a Branch of Legal Evidence, Littleton Colorado, Fred B Rothman & Co, 1983 reprint of the 1889 edition, pp. 122– 123), as well as M Powell’s 1907 18th ed of Roscoe’s Nisi Prius, all repeat Peake’s mistake. 47 R v Gilham (1828) 1 Moody 186, 198; 168 ER 1235, 1239. 48 R v Gilham (1828) 1 Moody 186; 168 ER 1235. 49 Idem. 50 R v Gilham (1828) 1 Moody 186, 187; 168 ER 1235.

Religious Confession Privilege in Early Evidence Texts 19 entailed the confession of all his sins; the need to repair any injury done to his fellow man and to the laws of his country; and his belief that Gilham had done “the dreadful deed” and could not be reconciled to God without confession. After the chaplain departed, and despite a very clear caution from the gaoler that he was obliged to pass on anything he learned from Gilham to the mayor and magistrates, Gilham confessed his commission of Maria Bagnall’s murder to the gaoler. The following day, the mayor saw Gilham in the gaoler’s room and said that he believed Gilham wanted to tell him something. When Gilham affirmed that he did, the mayor cautioned him that anything he said “would probably be given in evidence against you”,51 but Gilham confessed the murder anyway. It was assumed in all the reported argument and in the judgements that the chaplain was a clergyman, and the argument revolved around the defence contention that the conviction could not be sustained because the confession had been “illegally obtained”.52 Because Gilham’s confessions “were … made under the influence of hopes and terrors created in the prisoner’s mind, both by the gaoler and the chaplain; they were … not voluntary and consequently were inadmissible”.53 The prosecution countered that even if the confession made to the gaoler was “not receivable in evidence, still the confession made to the mayor was receivable”54 since it had been preceded by a clear caution. It is evident that no clergyman or priest received a confession from Gilham, and neither Gilham nor such priest sought to assert a religious confession privilege in respect of any confessional communication. All the argument in the case instead revolved around the question of whether the spiritual advice given by the chaplain amounted to an illegal inducement which invalidated the probative value of Gilham’s confessional evidence. While Mr Justice Littledale at first instance had thought that none of the mayor’s warnings to Gilham that his confession might be used against him “could do away with the effect which the chaplain had produced in his mind”,55 Gilham’s case “differed from those cases where a confession [had] … been made under circumstances which prevented its being received in evidence”.56 Counsel for the prisoner sought to have the conviction set aside because the “confession or set of confessions [had been] illegally obtained”,57 and he sought to favourably compare the spiritual inducements used to elicit the confessions in this case with other cases, where the “undue means” used to elicit

51 52 53 54 55 56 57

R v Gilham (1828) 1 Moody 186, 191; 168 ER 1235, 1237. R v Gilham (1828) 1 Moody 186, 193; 168 ER 1235, 1238. Idem. R v Gilham (1828) 1 Moody 186, 193; 168 ER 1235, 1237. Idem. Idem. R v Gilham (1828) 1 Moody 186, 193; 168 ER 1235, 1238.

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confession had invalidated that evidence, though that undue means involved only “the impression of hope or fear”.58 The case thus concerned the need for a more precise definition of what inducements would render general confessional evidence inadmissible. Though the inducements relied upon in the argument were admittedly spiritual in nature, and while Richard Gilham may have felt that he confessed for a religious purpose, no religious confession privilege was asserted nor decided upon. The one reference to the law of religious confession privilege arose in Park J’s commentary upon R v Radford,59 where Best CJ had “refused to allow the clergyman to state the confession”.60 Disagreeing with Best CJ’s refusal to allow confessional evidence to be given in R v Radford, Park J then opined – and it is this opinion that has been cited as authority for the absence of any religious confession privilege in English common law: And his lordship could not have excluded this evidence because it was a breach of confidence in the clergyman to give it, because a minister is bound to disclose what has been revealed to him as matter of religious confession, Rex v Sparkes, cited Peake, N.P.C. 79, 1 Starkie on Evidence, 105.61

Park J’s reliance upon the Peake and Starkie analysis of Buller J’s decision in R v Sparkes led him into error. That error does not originate in the statement of what was decided in R v Sparkes, but in Peake and Starkie’s failure to add that Buller J’s decision in that case had been disapproved by Kenyon CJ in Du Barré v Livette,62 the only place where R v Sparkes had been mentioned at all. Peake’s failure to identify the difference between Buller J (R v Sparkes, unreported) and Kenyon CJ (Du Barré v Livette, reported) is the more difficult to understand since the only report available about either case was the report made of Du Barré v Livette by Peake himself. Perhaps it can be fairly observed that Peake preferred the unreported conclusion of Buller J in R v Sparkes about religious confession privilege when he heard it cited by counsel in argument before Kenyon CJ in Du Barré v Livette, before Kenyon CJ rejected it. If that is a fair observation, it is surely ironic that the reporter’s analysis of the common law where religious confession privilege is concerned, has prevailed over that of the Chief Justice of the day. But in his enduring though brief reference to Peake and Starkie on the point in his judgement in R v Gilham, Park J apparently knew none of this. He simply relied on Peake’s summary of the law.

58

R v Gilham (1828) 1 Moody 186, 194; 168 ER 1235, 1238. Unreported and only referenced in the Gilham report as an 1823 decision of Best CJ on circuit at the Exeter Summer Assizes. 60 R v Gilham (1828) 1 Moody 186, 197; 168 ER 1235, 1239. 61 R v Gilham (1828) 1 Moody 186, 198; 168 ER 1235, 1239. 62 Du Barré v Livette (1791) 1 Peake 108; 170 ER 86. 59

Religious Confession Privilege in Early Evidence Texts 21 The first edition of Peake’s A Compendium of the Law of Evidence in 180163 cites only R v Sparkes, an unreported case in 1790 and the Duchess of Kingston’s case64 (a 1776 case where the Duchess asserted that her communications as a patient with her physician were privileged) as authority for his conclusion that “a confession to a clergyman or priest … [is] not within the protection of the law”.65 Starkie’s 1824 Practical Treatise on the Law of Evidence66 cites Peake’s Nisi Prius Cases (referred to by Park J), Butler v Moore67 and Vaillant v Dodemead68 as authority for his proposition that “it has ever been held that a minister is bound to disclose that which has been revealed to him in a matter of religious confession”.69 The authors of his eighth American and fourth London edition in 1860,70 citing only the additional authority of R v Gilham, make no change in Starkie’s original text. This blind following of earlier commentators without reference back to the primary case materials has misled later commentators and the judges who have relied on them into the mistaken view that religious confession privilege had no support whatever in common law. An accurate understanding of the decision in R v Sparkes and its limited value as precedential authority is an important step in disabusing modern lawyers of this error. The Error in Wheeler v LeMarchant71 The issue in Wheeler v LeMarchant was whether legal professional privilege extended to protect communications between a solicitor and his client’s 63 Peake, T, A Compendium of the Law of Evidence, London, E & R Brooke and J Rider, 1801. The authorities were unchanged in the 5th edition (Peake, T, A Compendium of the Law of Evidence, 5th ed, London, J & WT Clarke, 1822). Though not the work Park J cited which was evidently Peake’s Nisi Prius Cases, the conclusion in Peak’s Compendium is consistent with what Park J drew from the different text by the same author. 64 Duchess of Kingston’s case (1776) 20 Howells St. Tr. 612. 65 Peake, T, A Compendium of the Law of Evidence, London, E & R Brooke and J Rider, 1801, p. 128. See also the same conclusion with the same limited authority in the 5th edition in 1822 (Peake, T, A Compendium of the Law of Evidence, 5th ed, London, J & WT Clarke, 1822, p 175). 66 Starkie, T, A Practical Treatise on the Law of Evidence, London, J & WT Clarke, 1824. 67 Butler v Moore (1804–1806) 2 Sch & Lef 249. Butler v Moore is discussed in chapters four (pp. 107, 114–115) five, (pp. 149), and six (pp. 161–163) where its dismissal as precedential authority by WM Best (A Treatise on the Principles of Evidence, London, S Sweet, 1849, pp. 459–460) and Mayor Clinton as the Judge in an 1813 US case (The People v Phillips (1813) NY Ct. Gen. Sess., reprinted in “Privileged Communications to Clergymen”, The Catholic Lawyer 1 (1955) 198) on account of its marked anti-Catholic bias, are referenced. 68 Vaillant v Dodemead (1743) 2 Atk 524; 26 ER 715. This case about legal professional privilege with only generalised comment confining privilege to “persons of the profession, as counsel, solicitor or attorney” is discussed in detail in chapter four, p. 140. 69 Starkie, T, A Practical Treatise on the Law of Evidence, London, J & WT Clarke, 1824, Vol 1, p. 105. 70 Starkie, T, A Practical Treatise of the Law of Evidence, Doudeswell, GM and Malcolm, JG, eds, Philadelphia, T & JW Johnson & Co, 1860, p. 40. 71 Wheeler v LeMarchant (1881) 17 Ch D 675; 50 LJ Ch 793; [1881–5] All ER 1807.

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surveyor. That submission was denied on the simple grounds that while germane to the subject matter of the litigation, the written exchanges before the dispute arose were not communications by or with a “representative … employed as an agent … to obtain the legal advice of the solicitor”.72 Sir George Jessel MR’s full obiter quotation cited by both Powell’s 9th edition73 and Taylor’s 11th74 reads as follows: [T]he principle [protecting confidential communications] is of a very limited character. It does not protect all confidential communications which a man must necessarily make in order to obtain advice necessary even for the protection of his life, or of his honour, to say nothing of his fortune. There are many communications which are quite unprotected, but which must be made because, without such communications being made, the ordinary business of life cannot be carried on. The communication made to a medical man, whose advice is sought by a patient with respect to the probable origin of the disease as to which he is consulted, and which must necessarily be made in order to enable the medical man to advise or to prescribe for the patient, is not protected. All communications made to the priest in the confessional, on matters perhaps considered by the penitent to be more important even than the care of his life or his fortune, are not protected. Communications made to a friend with respect to matters of the most delicate nature on which advice is sought, with respect to a man’s honour or reputation, are not protected. Therefore it must not be supposed that there is any principle which says that every confidential communication which, in order to carry on the ordinary business of life, is necessary to be made, is protected. The protection is of a very limited character. It is a protection in this country restricted to the obtaining the assistance of lawyers as regards the conduct of litigation, or the rights to property. It has never gone beyond the obtaining legal advice and assistance, and all things necessary in the shape of communication to the legal advisers are protected from production or discovery, in order that that legal advice may be obtained safely and sufficiently.75

No authority was cited anywhere in Sir George Jessel’s judgement. Two cases were cited in Brett LJ’s judgement when, with Cotton LJ, he concurred in the result, but neither is relevant to religious confession privilege. However, the report indicates that Anderson v Bank of British Columbia76 was referred to in argument. This was a case in the Court of Appeal over which Sir George Jessel presided as Master of the Rolls six years earlier. Since he cited authority for his

72

Wheeler v LeMarchant [1881–5] All ER 1807, 1811 per Cotton LJ. Odgers, WB, Powell’s Principles and Practice of the Law of Evidence, 9th ed, London, Butterworth & Co, 1910, p. 240. 74 Matthews, JB and Spear, GF, A Treatise on the Law of Evidence by His Honour the late Judge Pitt Taylor, 11th ed, London, Sweet & Maxwell Limited, 1920, Vol 1, p. 622. 75 Wheeler v LeMarchant [1881–5] All ER 1807, 1809. 76 Anderson v Bank of British Columbia (1876) LR 2 Ch D 644; [1874–80] All ER 396. Anderson is also cited by some commentators as authority for the non-existence of religious confession privilege at common law (for example, GD Nokes (“Professional privilege” (1950) 66 LQR 88, p. 98 note 56 who does not accept the proposition outright). But it is not mentioned at all by Phipson, Odgers rewriting Powell, or any of the editions of Cross here cited. 73

Religious Confession Privilege in Early Evidence Texts 23 similar obiter denial of religious confession privilege in Anderson v Bank of British Columbia, it is appropriate to review his reasoning there to determine whether it supports his restated denial of religious confession privilege in Wheeler v LeMarchant. In Anderson v Bank of British Columbia,77 the English Court of Appeal declined a submission that legal professional privilege extended to cover information prepared for the client by its overseas bank after litigation had started even though it was argued that the client’s request for information was a direct and necessary result of his solicitor’s request for the information. While it was accepted that the privilege extended “to all communications made by the client to the solicitor through intermediate agents”,78 and though the client submitted that his London bank was in fact acting as his solicitor’s agent for the purposes of collecting the requisite information from Canada,79 the court did not accept that the bank “in transmitting that information, was discharging a duty which properly devolved upon the solicitor”.80 For Mellish LJ, “the object here was, not to obtain evidence, but to learn what the facts were, in order to know whether the claim should be resisted”.81 The statements confirm the English Court of Appeal’s late nineteenth century conviction that evidential privileges should be construed narrowly so as to ensure that all the relevant evidence might be available for consideration. Sir George Jessel MR quoted only Lord Cottenham’s decision in Reid v Langlois82 before stating that the common law “has not extended that privilege, as some foreign laws have, to the medical profession, or to the sacerdotal profession”.83 Lord Cottenham had said: Now the argument turned on this, that although a party may communicate with his legal advisor, and that production of the documents arising out of that communication will be protected, yet if the message is sent through a third person in writing it is not protected. It is obvious that no such distinction as this can be maintained; the object is to protect the party who wishes to take the advice of professional men.84

77

Anderson v Bank of British Columbia (1876) LR 2 Ch D 644; [1874–80] All ER 396. Anderson v Bank of British Columbia (1876) LR 2 Ch D 644, 649 per Jessel MR. 79 Ibid, p. 650 per Jessel MR. 80 Ibid, p. 652 per Jessel MR. 81 Ibid, p. 655. 82 Reid v Langlois (1849) 1 Mac & G 627; 41 ER 1408. 83 Anderson v Bank of British Columbia (1876) LR 2 Ch D 644, 650. In 1880, Sir George Jessel MR similarly dispatched an argument that a “Puirsuivant” of the Herald’s College acting as a confidential genealogist in supporting a formal protest against a pedigree was not acting in the same capacity as a barrister or solicitor. Indeed, he put the matter quite simply in terms reflective of his reasoning in Anderson when he said “professional advice in England is confined to legal advice” (Slade v Tucker (1881) LR 14 Ch D 824, 827). 84 As quoted by Sir George Jessel MR in Anderson v Bank of British Columbia (1876) LR 2 Ch D 644, 650. 78

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Sir George Jessel MR elaborated “that privilege” further: We know that in some foreign countries communications made to a medical man are privileged upon the ground that it is desirable that a man shall be perfectly free in his communication with his medical man as that he shall be free in his communications with his lawyer. That has not been recognised in this country. 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. When Lord Cottenham says “professional men” he means members of the legal profession and nothing else – “and he would be prevented from taking such advice if there was the hazard of having it revealed on entering into a contest with an opponent”.85

Of the four judges who heard the appeal in Anderson v Bank of British Columbia in the Court of Appeal,86 only Sir George Jessel MR and James LJ commented on the common law as to the state of religious confession privilege.87 When one reviews the cases referred to in argument88 and more particularly those referred to in all seven judgements (that is, in both Anderson v Bank of British Columbia and Wheeler v LeMarchant), there is no reference to any case that dealt directly with religious confession privilege.89 All of the cases discussed were about the metes and bounds of legal professional privilege. It does not seem that any of these judges considered that religious confession privilege might have been a separate and discrete head of privilege from that which Lord Cottenham had discussed as the privilege of professional men.90

85

Anderson v Bank of British Columbia (1876) LR 2 Ch D 644, 650–651. Jessel MR, James LJ, Mellish LJ and Baggally JA. 87 The other two judges were Brett and Cotton LJJ. 88 In Anderson v Bank of British Columbia, those cases were Greenough v Gaskell (1833) 1 My & K 98; Reid v Langlois (1849) 1 Mac & G 627; 41 ER 1408; Curling v Perring (1835) 2 My & K 380; 39 ER 989; Steele v Stewart (1843) 1 Ph 471; 41 ER 711; Lafone v Falkland Islands Company (1857) 4 K & J 34; 70 ER 14, 17; Ross v Gibbs (1869) Law Rep 8 Eq 522; Woolley v North London Railway Company (1869) Law Rep 4 CP 602; Casey v London Brighton and South Coast Railway Company (1870) Law Rep 5 CP 146; Skinner v Great Northern Railway Company (1874) Law Rep 9 Ex 298; and Chartered Bank of India v Rich (1863) 4 B & S 73; 32 LJ (QB) 300; 122 ER 387. 89 The cases referred to earlier in this chapter (R v Sparkes, Du Barré v Livette and R v Gilham), despite their errors, are not mentioned and neither are Broad v Pitt (1828) 3 Carr & P 518; 172 ER 528; R v Wild (1835) 1 Moody 452; 168 ER 1341; R v Griffin (1853) 6 Cox Cr Cas 219 and R v Hay (1860) 2 Foster & Finlason 4; 175 ER 933 which are treated in subsequent chapters and more directly approach the point. 90 In chapters two and three, I document the origins of religious confession privilege long before legal professional privilege was mooted. A significant portion of chapter four will identify the confusion that has resulted from a failure to recognise the separate existence of the two privileges despite some superficial similarities. 86

Religious Confession Privilege in Early Evidence Texts 25 The context of Lord Justice James’ obiter comment about religious confession privilege, was again the need to define legal professional privilege. He observed that the established legal professional privilege rule had not been changed by Vice-Chancellor Stuart’s “casual and hasty generalization [in Ross v Gibbs91] not called for by the facts of the case”.92 In Ross v Gibbs, the ViceChancellor was submitted to have licensed the argument “that any communication made by a person with a view to litigation, whoever that person is, must be protected”.93 Lord Justice James’ recoil was: If the rule had been as was supposed to be laid down in that case, all that is said in text books by learned authors with regard to the origin of the principle, and with regard to the justification of the privilege – all that is said about its being confined to lawyers and not extending to doctors and priests … the whole of that would be, to my mind, puerile nonsense.94

With the benefit of hindsight, Lord Justice James’ observation appears ironically as a “hasty generalization” in its own right. For this comment about religious confession privilege was unnecessary in a case about the metes and bounds of legal professional privilege when litigation was in prospect, and he cited no authority. And the irony is deeper than that. For neither ViceChancellor Stuart nor Lord Cottenham had any idea that they were generalising about religious communications privilege when they wrote their respective judgements in Reid v Langlois95 and Ross v Gibbs.96 Certainly these two “casual and hasty generalizations [were] not called for by the facts of [the Anderson v Bank of British Columbia] case”97 and equally represent a departure from the common law98 where religious confession privilege is concerned. Though they concurred in the result in Anderson v Bank of British Columbia, neither Mellish LJ nor Baggallay JA saw any similar need to generalise. Wheeler v LeMarchant is the decision of Sir George Jessel MR most often cited as authority for the absence of a religious confession privilege at common law after 1890. For example, when Phipson wrote his original text in 1892,99 he wrote: Professional privilege is strictly confined to the case of legal advisers; and does not extend to that of doctors, priests, confidential friends (Wheeler v LeMarchant 17 Ch.D. 681), clerks, stewards, or pursuivants of the Herald’s College employed to oppose enrolment of a pedigree (Slade v Tucker, 14 Ch.D. 824).100 (Italics original) 91 92 93 94 95 96 97 98 99 100

Ross v Gibbs (1869) Law Reports 8 Eq 522. Anderson v Bank of British Columbia (1876) Law Reports 2 Ch D 644, 656. Idem. Idem. Reid v Langlois (1849) 1 Mac & G 627; 41 ER 1408. Ross v Gibbs (1869) Law Rep 8 Eq 522. Anderson v Bank of British Columbia (1876) Law Reports 2 Ch D 644, 656 per James LJ. Idem. Phipson, SL, The Law of Evidence, London, Stevens and Haynes, 1892. Ibid, p. 109.

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However, when he added full notes to his eleventh edition of Best’s Law of Evidence,101 (including comments on Wheeler v LeMarchant) to the extended coverage of Best’s original text102 which had doubted the common interpretive denial of religious confession privilege,103 Phipson was more guarded. He also left intact both Best’s doubt of the standard denials of the privilege104 and Best’s certainty that there was a religious confession privilege “previous to the Reformation”.105 On this occasion, Phipson wrote of Wheeler v LeMarchant: In 1881, … where the question was whether letters between solicitors and surveyors were privileged, and the court held that they were not, with the exception of those prepared confidentially after dispute, Jessel, M.R., observed that “the principle protecting confidential communications is of a very limited character”, and that, amongst others, “communications made to a priest in the confessional, in matters perhaps considered by the penitent to be more important even than his life or his fortune, are not protected”.106

However, Phipson’s rather more direct statement in the 5th edition of his own work,107 suggest that he believed strong obiter statements in Normanshaw v Normanshaw,108 Gedge v Gedge109 and Wheeler v LeMarchant put the extinction of religious confession privilege beyond doubt. In that work, he wrote that “the privilege attaching to confidential professional disclosures is confined to the case of legal advisers and does not protect those made to clergymen”110 despite what he had written the same year in his 11th edition of Best’s work which is quoted above. The editors of the 13th edition of his work in 1982111 seem equally convinced in their straightforward assertion that “[t]he privilege does not protect

101 Phipson, SL, Of the Law of Evidence by the late WM Best, 11th ed, London, Sweet & Maxwell, 1911. 102 Best, WM, A Treatise on the Principles of Evidence, London, S. Sweet, 1849. 103 Ibid, pp. 458–460. 104 Best, WM, A Treatise on the Principles of Evidence, London, S. Sweet, 1849, pp. 458–460 and Phipson, SL, Of the Law of Evidence by the late WM Best, 11th ed, London, Sweet & Maxwell, 1911, pp. 561–563. 105 Best, WM, A Treatise on the Principles of Evidence, London, S. Sweet, 1849, pp. 460–463 and Phipson, SL, Of the Law of Evidence by the late WM Best, 11th ed, London, Sweet & Maxwell, 1911, pp. 563–567. 106 Phipson, SL, Of the Law of Evidence by the late WM Best, 11th ed, London, Sweet & Maxwell, 1911, pp. 562–563. 107 Phipson, SL, The Law of Evidence, 5th ed, London, Stevens and Haynes, 1911. 108 Normanshaw v Normanshaw (1893) 69 LTR 468. This case is discussed in chapters four (pp 159 and 162) and five (pp 184–187). 109 Gedge v Gedge cited only from 1909 newspaper reports in Phipson (Globe, 13 July 1909 and Times 14 July 1909), “where a claim made by a cleric to withhold a communication to his Bishop was disallowed” (Phipson, op cit, Book II, p. 188). 110 Ibid, Book II, p. 188. 111 Buzzard, JH, May, R and Howard, MN, Phipson on Evidence, 13th ed, London, Sweet & Maxwell, 1982.

Religious Confession Privilege in Early Evidence Texts 27 disclosures made to clergymen”,112 citing again Normanshaw v Normanshaw, Gedge v Gedge and Wheeler v LeMarchant. However, like Phipson himself, they do not acknowledge Jeune P’s prefatory comments in Normanshaw v Normanshaw “that each case of confidential communication should be dealt with on its own merits [though] … in the present instance, he saw no reason why the witness should not speak as to his conversation with the respondent”.113 While Odgers, who rewrote and rearranged Powell’s Principles and Practice of the Law of Evidence, in the ninth edition,114 notes Best, Stephen and Taylor’s objections to the simple assertion that “[c]ommunications to clergymen and priests are strictly not privileged”,115 he concludes his commentary with a full quote from Jessel MR in Wheeler v LeMarchant dismissing the privilege.116 However, he does not include any indication that this obiter statement was made in a case about extending legal professional privilege to surveyors. Taylor’s 1928 authors117 similarly cite the same full quote from Jessel MR in Wheeler v LeMarchant118 to justify their statement that “clergymen and medical men are bound to disclose any information which by acting in their professional character they have confidentially acquired”119 without noting its obiter context. Both Cross on Evidence’s seventh English edition120 and its sixth Australian edition121 cite Sir George Jessel MR’s “dictum” in Wheeler v LeMarchant “against the existence of the privilege”,122 though with some variation in the strength of the statements against the existence of religious confession privilege. While the 1990 English version of the text says that “the opinion of all the text-writers … is against the existence of any privilege”,123 and the 2000

112 Ibid, para 15-09. However, these authors concede idem that “there exists a strong body of opinion against the enforcement of the rule”, citing R v Griffin (1853) 6 Cox Cr Cas 219; Broad v Pitt (1828) 3 Carr & P 518; 172 ER 528; R v Hay (1860) 2 Foster & Finlason 4; 175 ER 933; Re Keller (1887) 22 LR Ir 158; Tannian v Synott (1903) Ir LT 275 and Ruthven v De Bour (1901) 45 Sol J 272. 113 Normanshaw v Normanshaw (1893) 69 LTR 468, 469. 114 Odgers, WB, Powell’s Principles and Practice of the Law of Evidence, 9th ed, London, Butterworths, 1910. 115 Ibid, p. 240. 116 Idem. The full quote is recorded in context supra at p. 22. 117 Matthews, JB and Spear, GF, A Treatise on the Law of Evidence by His Honour the late Judge Pitt Taylor, 11th ed, London, Sweet & Maxwell Limited, 1920. 118 Ibid, Vol 1, p. 622. 119 Idem. 120 Cross, Sir R and Tapper, C, Cross on Evidence 7th ed, Butterworths, London, Dublin, Edinburgh, 1990. 121 Heydon, JD, Cross on Evidence 6th Australian ed, Butterworths, Sydney, Adelaide, Brisbane, Canberra, Melbourne, Perth, 2000. 122 Cross, Sir R and Tapper, C, op cit, p. 447; Heydon, JD, op cit, p. 743. 123 Cross, Sir R and Tapper, C, op cit, p. 447.

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Australian edition bluntly states “[t]here is no such privilege at common law”,124 both note that it “must have existed at the time of the Reformation”.125 As will be seen, Nokes’ gloss on Sir George Jessel MR’s dictum in Wheeler v LeMarchant as one of many cases “extending over 250 years which suggest or assert that no privilege exists”,126 is much more accurate. He also points up the irrelevance of many of the cases that are cited against the privilege.127 McNicol has similarly cited Sir George Jessel MR’s dictum behind her observation that there is “a paucity of judicial authority to support the claim that there is no privilege arising out of the priest-penitent relationship”.128 Sir George Jessel MR’s often quoted denial that a religious confession privilege has ever existed in English law, is thus questionable. Conclusion The primary materials underlying the nineteenth century commentary on the law of evidence have not been adequately considered. When the facts of the decisions in R v Sparkes (1790) as reported in Du Barré v Livette (1791), R v Gilham(1828) and Wheeler v LeMarchant (1881) are reviewed against the denial of any religious confession privilege attributed to them by the majority of the text writers, it is difficult to accept that they justify that authority. It is similarly difficult to accept the bald proposition that either Buller J’s opinion in R v Sparkes or Park J’s statement of his understanding of the law in R v Gilham could have changed the pre-existing law (whatever that was) since Chief Justice Kenyon contemporaneously disagreed with Buller J and Park J was clearly mislead by Peake and Starkies’ commentary. But Sir George Jessel MR’s obiter statements in Anderson v Bank of British Columbia (1876) and Wheeler v LeMarchant (1881) stand in a different category since they can be interpreted as his simple assertion of what the common law of England had become, regardless of the past. Before that interpretation can be weighed, it is necessary to identify what the law relating to religious confession privilege was in the past – and since that law originated in custom, the next part of the book will closely review the relevant custom in its social and canon law historical context.

124 125 126 127 128

Heydon, JD, op cit, p. 743. Cross, Sir R and Tapper, C, op cit, p. 447; Heydon JD, op cit, p. 743. Nokes, GD, “Professional Privilege”, 66 LQR 88, 97–98. Ibid, pp. 96–97. McNicol, SB, Law of Privilege, Australia, The Law Book Company Ltd, 1992, p. 324.

CHAPTER TWO

RELIGIOUS CONFESSION PRIVILEGE IN HISTORICAL CONTEXT Introduction The purpose of chapters two and three of the book is to demonstrate with historical and canonical evidence, that religious confession was practised and privileged in law before the Magna Carta was signed in 1215. It was still practised, privileged and recognised in legal practice in the seventeenth century when Sir Edward Coke published his Second Part of the Institutes.1 This part of the book will therefore attempt to rebut Wigmore’s assertion that: [t]he only available data [in favour of pre-Reformation common law religious confession privilege] appear to be an indecisive incident in the Jesuit trials under James I, and a statute of much earlier date and ambiguous purport, together with the general probabilities to be drawn from the recognition of Papal ecclesiastical practices prior to Henry VIII.2

Chapter two will focus on the historical materials and chapter three on the significance of the canonical law and practice. However, to enable modern lawyers to correctly understand the historical and canonical evidence that will be cited, chapter two will begin by reminding readers that some modern ideas must be set aside to understand historical evidence. Specifically, the modern idea that the church and state do and must always live in separate and distinct domains, does not help a modern lawyer understand the significance of historical and canonical materials. Similarly, the modern idea that the common law is what one finds in the cases, does not assist understanding before those cases were reported at all or before they were reported in a consistent and scholarly way. Lawyers in different times have understood the relationship between case law and statute law as common law in different ways. Custom and practice played a much larger role in the formation of common law before there were extensive law reports.

1 Coke, Sir E, The Second Part of the Institutes of the Laws of England, New York, Garland Publishing Co, 1979. Coke’s Second Part of the Institutes is believed to have been published some time between 1630 and 1640, after Charles I (1625–1649) initially banned publication (Hostettler J, Sir Edward Coke, a force for freedom, Chichester, Barry Rose Publishers Ltd, 1997, pp. xiv, 160). 2 Wigmore, JH, Evidence in trials at common law, Revised by John T McNaughton, Boston, Little Brown, 1961, Vol 8, p. 869.

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The evidence then considered will include Sir Edward Coke’s recognition of religious confession privilege in his Second Part of the Institutes3 on the strength of the Statute Articuli Cleri in 1315;4 the validity of his assertion that treason was an exception to the privileges of the church known as “sanctuary and abjuration”, “benefit of clergy” and “priviledge of confession”; that “benefit of clergy” and “priviledge of confession” were separate ‘privileges’; and the facts, reasoning and decision in Garnet’s case in 16065 when religious confession privilege was defensively asserted in a highly antagonistic environment. Chapter three will consider the origins of the seal of confession in canon law and its recognition in secular law; King Henry VIII’s retention of the existing established religious doctrines and practices (including the seal of confession with penalty) despite his religious reformation; and the historical and current influence of canon law upon secular law where religious confession privilege is concerned. In particular it will weigh the conservative opinions of Bursell6 and others7 to the effect that ecclesiastical law is still “a part of the general law of [England]”8 against the more liberal implication of Doe9 and others10 that any residual effects of canon law may now be discounted when they collide with the dictates of secular policy. Despite his pessimistic conclusion that the common law protection of religious confession privilege was probably lost during the centuries of Catholic persecution which followed the English Reformation, Nolan’s arguments in favour of the existence of religious confession privilege in common law until at least after Coke, will be reviewed for contemporary relevance.11 I conclude chapters two and three with the finding that religious confession was practised and privileged in legal practice before and after the English Reformation. Accordingly, Wigmore’s discounting of the available historical materials documenting religious confession privilege was an inaccurate gloss upon them. More evidence was available than Garnet’s case12 which he characterised as “an indecisive incident in the Jesuit trials under James I”13 and 3

Coke, op cit, p. 629. 9 Edward II St.1. 5 Garnet’s case (1606) 2 Howell’s State Trials 217. 6 Bursell, Judge RDH, “The Seal of the Confessional”,7 Ecclesiastical Law Journal (1990) 84. 7 For example, Finlason’s editorial comments on R v Hay (1860) 2 Foster & Fin 4; 175 ER 933; Badeley, E, The Privilege of Religious Confessions in English Courts of Justice considered in a letter to a Friend, London, Butterworths, 1865 and Winckworth, P, The Seal of the Confessional and the Law of Evidence, London, S.P.C.K., 1952. 8 Bursell, op cit, p. 108. 9 Doe, N, The Legal Framework of the Church of England, Oxford, Clarendon Press, 1996 p 354. 10 For example Nokes, CD, “Professional Privilege” [1950] 66 LQR 88,101; Elliott, DW, “An Evidential Privilege for Priest-Penitent Communications”, 16 Ecclesiastical Law Journal (1995) 272 and Leeder, L, Ecclesiastical Law Handbook, London, Sweet & Maxwell, 1997, p. 555. 11 Nolan, RS, “The Law of the Seal of Confession”, (1913) 13 Catholic Encyclopedia 649. 12 Garnet’s case (1606) 2 Howell’s State Trials 217. 13 Wigmore, JH, Evidence in trials at common law, Revised by John T McNaughton, Boston, Little Brown, 1961, Vol 8, p. 869. 4

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the Statute Articuli Cleri,14 which he said was of “ambiguous purport”.15 His mere acknowledgment of the “general probabilities to be drawn from the recognition of Papal ecclesiastical practices prior to Henry VIII”16 is also the reasonable subject of criticism. The seal of confession as a sacrament of the Catholic Church was never, as Wigmore asserts, only an “ecclesiastical practice”,17 and endures in established Anglican canon law to the present day.18 The Problem with Modern Perspective Both Milsom19 and Helmholz20 say that modern lawyers frequently misunderstand historical legal practice and institutions because they assume an “anachronistic viewpoint”.21 They ask “unreal questions … [that are] preoccupied with today’s details”22 that would have no meaning to a medieval English layperson, let alone a medieval English lawyer, if there were such a person.23 Two particular modern patterns of thinking have to be recognised if the origins and place of religious confession privilege in English common law are to be correctly understood. Those patterns are the modern notion that church and state are or should be legally separate, and the idea that the common law is that body of reported judicial decisions, separate from the statutes, which provides guidance as to what the courts will do in the future when faced with similar cases. Church and State To someone living in the twelfth century in England, the very concept of the separation between church and state24 is hard, if not impossible, to comprehend.

14

9 Edward II St.1. Wigmore, op cit, Vol 8, p. 869. 16 Idem. 17 Wigmore, op cit, Vol.8, p. 869. 18 See the report of “The Clergy Discipline Working Group” (www.anglican.org.au/general synod2001/presynod/book4/CLERGY%20Discipline.doc last visited 5 July 2003). 19 Milsom, SFC, Historical Foundations of the Common Law, London, Butterworths, 1969. 20 Helmholz, RH, Canon Law and the Law of England, London and Ronceverte, Hambledon Press, 1987. 21 Milsom, op cit, p. xii; Helmholz, op cit, p. 101. 22 Idem. 23 While Paul Brand traces the origin of the English legal profession to the twelfth century (The Origins of the English Legal Profession, Oxford, UK and Cambridge, USA, Blackwell, 1992), he is not convinced that such lawyers as there were could be described as anything more than “narrators” (ibid, p. 85) in that century. It is not until the late thirteenth century in the reign of Edward I when he finds “controls on practice” (ibid, p. 115) and “the education of professional attorneys” (ibid, p. 119) that he is satisfied with the use of the term, “the legal profession”. 24 Plucknett says that it is Machiavelli (1469–1527) “who gave us the word ‘state’ and filled it with the content we now associate with it” (Plucknett, TFT, A Concise History of the Common Law, 5th ed, London, Butterworths, 1956, p. 41). 15

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In that hypothetical person’s mind, there was no separation between the church and the state and the two together constituted the governing influence in life. They presided at birth and marriage, and they pronounced upon the disposal of goods following death.25 The idea of any separation between church and state “introduces a sort of polytheism utterly repugnant to medieval thought”.26 It thus requires a change in thinking if twenty-first century lawyers are to understand the role of the church in medieval England. The idea that ecclesiastical courts had final legal jurisdiction in questions of marriage, bigamy, divorce and adultery, estate administration, crime and contract,27 is unfamiliar to us. Pollock and Maitland helped explain this involvement of the church in secular matters when they wrote: Every layman, unless he were a Jew, was subject to ecclesiastical law. It regulated many affairs of his life, marriages, divorces, testaments, intestate succession; it would try and punish him for various offences, for adultery, fornication, defamation; it would constrain him to pay tithes and other similar dues; in the last resort it could excommunicate him and then the state would come to its aid. Even the Jews … were … within the sphere of ecclesiastical legislation and subject to some of the processes of the spiritual courts.28

Though complete ecclesiastical jurisdiction in criminal matters endured beyond the twelfth century only in respect of the clergy,29 the essential and continuing premise for the church interest in criminal matters arose out of its acknowledged jurisdiction over matters of sin.30 Where matters arising from 25 Pollock, Sir F, & Maitland, FM, The History of English Law, 2nd ed, Cambridge University Press, 1968, Vol 1, p. 439, and Holdsworth, WS, A History of English Law, 2nd ed, Boston, Little Brown and Co, 1923, Vol 1, pp. 614–632. 26 Plucknett, op cit, p. 40. 27 Holdsworth says that the church “claimed criminal jurisdiction in all cases in which a[n ecclesiastical] clerk was the accused”; contractual jurisdiction where its justification was the need “to enforce all promises made with oath or pledge of faith”; and “jurisdiction over matrimonial and testamentary causes” (op cit, p. 614), which last jurisdictions were not really removed from the church until 1857 when Probate and Divorce Courts were established by the Statute 20, 21 Victoria c 77 and c 85 respectively (Holdsworth, ibid, pp. 624, 630). 28 Pollock, Sir F, & Maitland, FM, The History of English Law, 2nd ed, Cambridge University Press, 1968, Vol 1, p. 439. 29 Holdsworth, op cit, Vol 1, p. 615. 30 Helmholz says “that the medieval and ecclesiastical courts regularly exercised jurisdiction over secular crimes like theft and murder” (Helmholz, RH, Canon Law and the Law of England, London and Ronceverte, The Hambledon Press, 1987, p. 120), particularly where such jurisdiction was “allowed by local custom or where secular justice was not available to punish a crime” (p 122). However, he adds the insight even when secular justice did provide a remedy “[c]ommission of a secular crime … clearly might bar a man from seeking ordination … for crimes were also sins and must therefore have brought the sinner within the Church’s admitted competence” (p 122). Berman observes that the real issue was the church’s effective denial of jurisdiction over sin to the secular courts from the end of the eleventh century. From that time onwards, a “sharp procedural distinction” meant that “[a]ny act punishable by royal or other law officials was [t]henceforth … punished as a violation of secular law and not as sin … [against the] law of God” (Berman, HJ, Law and Revolution: The formulation of the Western Legal Tradition”, Harvard University Press, Cambridge Massachusetts and London England, 1983, pp. 185–186).

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marriage were concerned, Holdsworth notes simply that “the temporal courts had no doctrine of marriage”.31 He then points up the complexities of the jurisdiction thus left to the church since issues of dowry, inheritance, legitimacy, de facto marriage, and divorce all fell into church jurisdiction by practical consequence.32 In what became the law of contract, it was the element of a promise with a religious oath that both attracted and justified in medieval minds ecclesiastical involvement and some parallel jurisdiction, even while the royal courts sought complete control.33 The Church was thus an omnipresent player in medieval life. It was as involved in the regulation of day-to-day life as the modern state and could invoke the aid of the King’s officers to apprehend and force compliance from its recalcitrants.34 In any event, “the temporal consequences of excommunication [which was the most severe penalty that the church could invoke] were obvious”.35 Quoting Bracton (thirteenth century), Holdsworth notes that: [a]n excommunicated person … cannot do any legal act, so that he cannot act, or sue anyone, though he himself may be sued … And if he has obtained a writ it is not valid. For except in certain cases, it is not lawful either to pray or speak or eat with an excommunicate either openly or secretly”.36

Holdsworth observes that the law is not much altered in Blackstone’s day (eighteenth century), when an excommunicate still “cannot … serve upon juries, cannot be witness in any court, and … cannot bring an action either real or personal, to recover lands or money due to him”.37 The Church’s place at the centre of what we now consider very secular matters, gave it a position of privilege that is unfamiliar in the absence of extensive ecclesiastical jurisdiction. But in Bracton’s time, the word ‘privilege’ itself was used to earmark that piece of ecclesiastical jurisdiction which was reluctantly preserved to the

31

Holdsworth, op cit, Vol 1, p. 622. Idem. 33 Helmholz observes that while the ecclesiastical court judges would obey a writ of prohibition from the King instructing them to stop their trial in a temporal matter, the church would often have the last word by threatening ecclesiastical sanctions against the litigants in the temporal court if they continued their use of the royal judicial machinery (see op cit, chapter five, “Writs of Prohibition and Ecclesiastical Sanctions in the English Courts Christian”, p. 77). 34 Holdsworth says that “[t]he process by which the ecclesiastical courts enforced obedience to their decrees was excommunication … If the excommunicate did not submit within forty days, the ecclesiastical court signified this to the Crown, and thereon a writ de excommunicato capiendo issued to the sheriff. He took the offender and kept him in prison till he submitted. When he submitted the bishop signified this, and a writ de excommunicato deliberando issued” (Holdsworth, op cit, Vol 1, pp. 630–631). 35 Holdsworth, op cit, Vol 1, p. 631. 36 Idem. 37 Idem. 32

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church even after the King’s secular courts had assumed general criminal jurisdiction.38 Thus, if someone from Bracton’s (thirteenth century) or Henry VIII’s (sixteenth century) England were asked whether the law recognised a religious confession privilege, the question would cause confusion. Milsom and Helmholz are right.39 To obtain a meaningful answer, we would have to ask different questions – perhaps, “Would a judge in one of the King’s temporal courts ever ask a priest to disclose a secret learned in the confessional, and would that judge send the priest to gaol if disclosure of such secrets was refused?” Both questions would be answered in the negative, but the reasons are difficult to frame without anachronism. In essence, the reasons are fivefold. First, priests could not be tried in a secular court. This was not just a criminal prohibition. A personal suit against a religious clerk could only be brought in an ecclesiastical court.40 Secondly, since not only priests, but lesser clergy, were entitled to claim “benefit of clergy”41 when charged with serious criminal matters other than treason, it is difficult to imagine a royal judge threatening priests with some early contempt equivalent. For an effective claim of “benefit of clergy” resulted in the immediate transfer of criminal cases to an ecclesiastical court unless the charge was high treason.42 Thirdly, until Pope Innocent IV (1243–1254) “prohibited priests from acting as judges”43 in the thirteenth century, the judges in the King’s Courts were frequently priests and were thus unlikely to try and coerce a disclosure which they knew would subject a priest to severe ecclesiastical

38 “Privilegium clericale” or ‘benefit of clergy’ is discussed infra, pp. 44–48. By successfully claiming to be a member of the clergy, a person accused of crime was delivered into the relevant Bishop’s custody for trial in the Bishop’s court. Church courts would not adjudicate capital punishment though even pre-trial imprisonment could last for years (Pollock, Sir F, & Maitland, FM, The History of English Law, 2nd ed, Cambridge University Press, 1968, Vol 1, p. 444). 39 Milsom, SFC, Historical Foundations of the Common Law, London, Butterworths, 1969, p xii; Helmholz, RH, Canon Law and the Law of England, London and Ronceverte, Hambledon Press, 1987, p. 101. See also notes 19–23 and supporting text. 40 Pollock, Sir F, & Maitland FW, The History of English Law, Cambridge University Press, 1968, Vol 1, p. 446. Note, however, that this statement is only a general statement of “the full extent of the clerical [jurisdictional] claim” (idem). Despite Thomas A’Becket’s martyrdom in 1170, ecclesiastical jurisdiction over the clergy, was in a state of continuing erosion until “benefit of clergy” was finally abolished in 1827 (7, 8 George IV. c.28). 41 “Benefit of clergy” is discussed infra, pp. 44–48. 42 Pollock and Maitland observe that misdemeanours (transgressio) “enjoyed no exceptional privilege” but felonies ranking between transgressio and treason were within the criminal jurisdiction over clergy reserved to the church as early as the thirteenth century (Pollock and Maitland, op cit, Vol 1, pp. 444–446). Note also that Father Henry Garnet’s trial (Garnet’s case (1606) 2 Howell’s State Trials 217) resulted in his execution for various reasons including arguably, because his defence of religious confession privilege was held inapplicable in a case of treason. Garnet’s case is considered in detail infra, pp. 55–58. 43 Holdsworth, op cit, Vol 1, p. 584. See also Nolan, RS, “The Law of the Seal of Confession” (1913) 13 Catholic Encyclopedia 649, 652.

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penalties.44 Even after this thirteenth century prohibition took practical effect, the King’s judges still belonged to the church and would know that confessional disclosures would have serious ecclesiastical consequences both for the priest, and perhaps for the judge personally as the coercive agent.45 Fourthly, though Pope Innocent III (1198–1216) condemned Thomas A’Becket’s denial of the royal right to further punish an ecclesiastical clerk who had “already suffered degradation”46 (an innovative double jeopardy argument), Becket’s martyrdom for this principle gave it a currency47 that would likewise have seen a temporal judge hesitate before compelling a priest to breach a vow with ‘foreign’ legal consequence.48 Fifthly, members of the Catholic Church through the years between Bracton and Henry VIII subscribed to the view that the priest receiving a confession did not know the confession himself, but only as God’s representative.49 Catholic judges could thus be expected to shrink at the vicarious prospect of compelling God in their courtroom. Plucknett puts modern understanding of church/state separation in its historical context, when he says that “the spirit of the Renaissance [questioned]…

44 The Catholic canon law applicable through the entire medieval period and applicable during the reign of Henry VIII is discussed in detail in chapter three. For current purposes, it is sufficient to note that Canon 21 of the Fourth Lateran Council in 1215 subjected a priest disclosing a confession or giving any hint of a penitent’s identity, to deposition from the priestly office and confinement thereafter in a monastery to do perpetual penance (Nolan, op cit, p 649). The influence of clerics who served as judges in the secular courts on respect for church privileges is discussed in chapter three, pp. 70–72. 45 Helmholz treats the interplay and competition of ecclesiastical sanctions, including excommunication against litigants and even judges as effective deterrent to the pursuit of remedies in the King’s courts, notwithstanding the powers of the King’s writs of prohibition which were used to restrain the courts of the church. See particularly his chapters entitled “The Writ of Prohibition to Court Christian before 1500” and “Writs of Prohibition and Ecclesiastical Sanctions in the English Courts Christian” in Canon Law and the Law of England, London and Ronceverte, Hambledon Press, 1987, pp. 59–100. 46 Pollock and Maitland, op cit, Vol 12, p. 455. 47 Idem. Becket’s jurisdictional contest with Henry II was well known. The backlash in public opinion which followed the martyrdom saw Henry II, in penance, walk barefoot to Canterbury and submit to a papal legate renouncing those portions of his 1164 Constitutions of Clarendon which the church deemed offensive (Berman, HJ, Law and Revolution, Cambridge Massachusetts and London England, Harvard University Press, 1983, p. 256). The investiture struggle, of which the jurisdictional contest between Becket and Henry II formed part, is discussed in chapter three, pp. 68–70. 48 While McNicol (McNicol, SB, Australia, Law of Privilege, Law Book Co, 1992, p. 326), among others, has doubted that modern courts would respect a self-incrimination defence citing ecclesiastical legal penalty following confessional disclosure, the argument would have been compelling in medieval times when it is unlikely that a priest would be tried before temporal courts in the first place. 49 Nolan cites the great English canonist Lyndwood as authority for this response to any malicious judge who presses to know the details of a confession (Nolan, RS, “The Law of the Seal of Confession” (1913) 13 Catholic Encyclopedia 649, 651). Holdsworth advises that Lyndwood “finished his commentaries upon the provincial constitutions of the Archbishops of Canterbury in 1438” (Holdsworth, op cit, Vol 1, p. 582). Taylor notes this same argument from the canonist Mascardus (sixteenth century) in his Treatise on the Law of Evidence (11th ed, by Matthews, JB, and Spear, GF, London, Sweet and Maxwell, 1920, Vol 1, p. 623).

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law itself ”.50 He notes that Machiavelli’s novel “distinction between public and private morality”51 evolved “the State, as a sort of anti-Christ, to wage war with the idea of law”,52 and he explains the difference between historical and modern understanding with the statement: Instead of the medieval dominion based upon divine right and subject to law, we have the modern State based upon force and independent of morality. And so, where many a medieval thinker would ultimately identify law with the will of God, in modern times it will be regarded as the will of the State.53

Holdsworth gives this dawning of the modern notion of ‘state’ some English context when he explains Henry VIII’s “theory of Royal Supremacy”. For Henry VIII, says Holdsworth, “[t]he Crown is … supreme over all persons and causes”, including the church, and Henry promoted this theory through Parliament in his statutory preambles. For Holdsworth, this new theory, which denied the Church autonomy in ecclesiastical matters, was the catalyst that broke the medieval paradigm, since parliamentary acts of law promoted by a King with an agenda, had turned the old theory upside down.54 The contests between the church and state over jurisdiction will be further detailed in chapter three as the influence of historical canon law upon common law is explained. That detail will further confirm that the modern concept of separated church and state was not comprehensible until after the Renaissance and the Reformation. For it was not until then that questions were raised about the foundational medieval paradigm which accepted that the rights of Kings and that revelations of law came from God through His Church. The Common Law When twenty-first century Anglo-American lawyers speak of the common law, they speak of that body of reported judicial decisions, separate from the statutory codes of their nations, which provide guidance upon what the courts will decide in similar cases in the future. Black’s law dictionary acknowledges the customary origins of common law, but it is the definitional reference to “judgments and decrees of courts … [and] judicial decisions, as distinguished

50 Plucknett, TFT, A Concise History of the Common Law, 5th ed, London, Butterworths, 1956, Vol 1, p. 40. 51 Idem. 52 Idem. 53 Ibid, p. 41. 54 Holdsworth, WS, A History of English Law, 2nd ed, Boston, Little Brown and Co, 1923, pp 588–591.

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from legislative enactments”55 that resonates as a definition of common law in a contemporary lawyer’s mind. Black defines common law thus: As distinguished from statutory law created by the enactment of legislators, the common law comprises the body of those principles and rules of action … which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of courts recognizing, affirming and enforcing such usages and customs; and, in this sense, particularly the ancient unwritten law of England. In general, it is a body of law that develops and derives through judicial decisions, as distinguished from legislative enactments.56

Milsom says that “the common law [is] the acceptance for all England of a single rule on any matter, the suppression of contrary customs leaving … something special … deep-rooted enough to survive … [as] the slow result of institutional centralisation”.57 But despite the “single rule on any matter” which looms large in the modern mind, the common law began from materials58 that existed before there were law reports. Those materials were the customs of discrete geographical communities and the decisions of the courts which governed them.59 In his “The Path of the Law”,60 Justice Oliver Wendell Holmes Jr sought to expose paradigmatic thinking about law when he said: History must be part of the study [of law], because without it we cannot know the precise scope of rules which it is our business to know … it is a part of the rational study, because it is the first step towards an enlightened skepticism, that is, towards a deliberate reconsideration of the worth of those rules … It is revolting to have no better reason for a rule of law than that it was so laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists upon blind imitation of the past.61

While it is certainly true that social morés and pressures can influence the common law of the twenty-first century, in our age of “rapid social change … we [are more accustomed to] make use of [direct] legislation”62 to accommodate the law to the social pace of life.63 In an earlier age, these necessary accommodations were facilitated by dexterous lawyers whose lateral thinking furnished

55 Black, HC, Black’s Law Dictionary, 6th ed, St Paul, Minnesota, West Publishing Co, 1990, p. 276. 56 Idem. 57 Milsom, SFC, Historical Foundations of the Common Law, London, Butterworths, 1969, p. 2. 58 Idem. 59 Idem. 60 Holmes, OW, Jr, The Path of the Law, Bedford Massachusetts, Applewood Books. 61 Ibid, pp. 20, 21. 62 Milsom, op cit, p. xii. 63 Idem.

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courts with palatable ways around older rules in the interests of contemporary justice.64 Oliver Wendell Holmes Jr confirms that judicial lawyers have also participated in this quest to accommodate contemporary needs when the solutions suggested by the available precedents do not feel quite right even in an age of abundant legislation. He has written: The training of lawyers is a training in logic. The processes of analogy, discrimination, and deduction are those in which they are most at home. The language of judicial decision is mainly the language of logic. And the logical method and form flatter that longing for certainty and for repose which is in every human mind. But certainty generally is illusion … [b]ehind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding … We do not realize how large a part of our law is open to reconsideration upon a slight change in the habit of the public mind. No concrete proposition is self-evident, no matter how ready we may be to accept it.65

But Milsom explicitly confirms the genealogy of common law in historical custom when he writes that: the materials of the common law … were the customs of true communities … [b]ut within each body of custom, what we think of as the law was not marked off from other aspects of society … [t]he needs of society were divers and constant, and they were for the most part supplied by the customary obligations resting upon ordinary people.66

In his 1991 article in the Oxford Journal of Legal Studies, AWB Simpson summarises the shift in thinking that is necessary if modern lawyers are to really understand where any particular common law doctrine came from, and what it means in the present – including, the writer suggests, the doctrine of religious confession privilege. To really understand, modern lawyers must abandon their picturesque and even fanciful notion that: the common law system and the rules and principles are in fact nothing more than the products of an inexorable Darwinian movement towards economic efficiency, which for some reason or other, lay dormant for six hundred years or so, but suddenly burst out in the 19th century to produce the tort of negligence and the rule in Hadley v Baxendale and other marvels.67

64

Milsom is emphatic that “lawyers have always been preoccupied with today’s details, and have worked with their eyes down” (idem), so that they have seldom seen “the violence” (idem) their work has done to “the conceptual economy” (idem) of their present, or the vast social and economic changes to which they have incrementally contributed. 65 Holmes, OW, Jr, op cit, p. 16. 66 Milsom, op cit, p. 2. 67 Simpson, AWB, “Legal Education and Legal History” (1991) 11 Oxford Journal of Legal Studies, 106, 109.

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Fortunately, he continues, that one system view of legal history has been outgrown, so that: there is now a generous sympathy with the idea that you cannot really understand law without attending to both its history, and to the way in which the operations of the various legal systems and the professional culture of lawyers, interacts with what may … be called society generally. At a theoretical level, what is involved is a denial of the notion that law is in a simple sense autonomous, [and] that its development can be understood … by an analysis of legal reasoning alone.68

The message of legal history is that there was common law before there were law reports of any kind. That common law originated in custom. In the context of this book, the custom and common law of England respected and privileged the sacraments of Catholicism, including the sacrament of confession before the Reformation. One final observation about our twenty-first century expectation of what constitutes the common law from which we extract our precedents is appropriately made before the historical evidence for a religious confession privilege before Henry VIII is discussed in detail. That point is that the ancient statutes were as much a part of the common law in medieval times as were judicial decisions. While the term ‘common law’ in its widest sense, still embraces both statute and common law, when searching for precedential authority, modern lawyers narrow that generality to reference only that law made by judges in cases.69 While modern statutory law can codify or change the common law, it is not generally referenced as a source of common law in its own right. If it is referenced at all for precedential guidance, a modern reference involving a statute is to a case which considered similar statutory language to see how it was interpreted by a judge in that case. In historical times, the King’s statutes were regarded in the same way as a modern judicial interpretation. The King was an authoritative judge, and the statutes were his statements of the common law. This point may be succinctly made with an example from Coke’s commentative treatment of religious confession privilege. Pre-Reformation Statutes and Common Law In his Second Part of the Institutes, Sir Edward Coke cited the Statute Articuli Cleri of 131570 as one of his authorities for the existence of a religious confession privilege in common law with these words:

68 69 70

Ibid, p. 111. See Black’s definition of common law supra, p. 37. 9 Edward II St.1.

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Chapter Two This branch declareth the common law, that the priviledge of confession extendeth only to felonies … and not to appeales of treason.71

Though Wigmore thought this early statute “ambiguous”,72 it was common law authority for Coke. Milsom confirms Coke’s interpretation when he says: To lawyers in the fourteenth century a statute was not something external to the law: it was an internal alteration, and it lived in its context so that its application was neither mechanical nor unalterable.73

While the Statute Articuli Cleri may seem “ambiguous” if we expect it to fulfil the function of a modern statute, it is not “ambiguous” at all when we understand that the King was using a statute to answer a petition and clarify the common law. Since the whole statute is lengthy, only that section which deals with religious confession privilege need be considered to highlight the interrelationship of what is now called the common law, with custom and statute. That is, the King’s judicial declaration of what the law is and will be in the future. Translated from the original Latin74 it reads: Also, whenever any who flee to the church abjure the land (abjurant terram),75 according to the custom of the Kingdom, the laity or their enemies prosecute them and they are dragged away from the public street and hanged or decapitated (decapitantur) forthwith, and while they are in the church they are guarded by armed men within the cemetery and sometimes within the church so closely that they cannot leave the sacred place for the purpose of setting aside their superfluous weight [that is, emptying their bowels], and it is not permissible that the necessaries of life be served to them. Reply: While they are in the church their guards must not linger within the cemetery, unless necessity or the risk of escape requires this. Nor should fugitives be confined while they are in the church so that they cannot have the necessaries of life (quin possint habere vitae necessaria) nor go outside freely in order set down their unmentionable load. Our Lord the King also requires that thieves and approvers (latrones vel appellatores) may, whenever they wish, confess their crimes to priests; but the confessors must take care that they do not wrongfully inform these approvers.

71

Coke, Sir E, The Second Part of the Institutes of the Laws of England, New York, Garland Publishing Co, 1979, p. 629. 72 Wigmore, JH, Evidence in trials at common law, Revised by John T McNaughton, Boston, Little Brown, 1961, Vol 8, p. 869. 73 Milsom, op cit, pp. 365–366. 74 Since neither Coke nor his commentators have provided a full translation of the relevant portion of Cap X, the writer commissioned a translation from the original Latin. The original Latin text is most readily available at pp. 628–629 of Coke’s Second Institute (Coke, Sir E, The Second Part of the Institutes of the Laws of England, New York, Garland Publishing Co, 1979). The author is indebted to Dr Will Richardson of the Classics and Ancient History Department at the University of Auckland for this translation. 75 The parenthesised italicised original Latin words are those upon which Coke chose to comment. His commentary and its accuracy will is discussed infra, pp. 43–44.

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Holdsworth writes that “these articles [Articuli Cleri] were an attempt to delimit accurately the sphere of the lay and spiritual jurisdictions, and they were the basis of all subsequent legislation76 upon this subject during the remainder of the medieval period”.77 These articles were framed as a church petition for redress of perceived anomalies in the law during a period when the influence of the church was waning from the high point achieved after Becket’s martyrdom (1170). Thus the petition evidences the problem and the response is the King’s judicial solution. Modern statutes simply state law. In this example, the judicial and deliberative component of early legislative process is manifest. The issues which the king resolved are stated as problems for judicial solution and the King’s answers are his judgement. The only difference between a judicial case and the questions which drew forth the King’s judgement laid down in his statute Articuli Cleri, was that this was a hypothetical case without individual parties – though as in court, it was framed as a petition. While we would be reluctant to cite a statute as if it were some kind of judicial statement of the common law today, the interplay between church, Parliament and King which is demonstrated in the statute Articuli Cleri, shows that the King’s role as a judge in the fourteenth century amounted to a judicial decision of what the common law of the realm would be from that time forward. The problems upon which the King was asked to pronounce, appear to have been: first, what to do with abjurers who had illegally returned to England and sought sanctuary a second time to avoid the customary penalty (hanging or decapitation); secondly, how to stop the perceived sacrilege involved in having armed men present in a church or cemetery to prevent the escape of returned abjurers, or the provision of life support to either returned abjurers or those who had outstayed the forty days’ grace before they must abjure;78 and finally, how to appropriately manage the guards appointed to prevent escape from the sanctuary, some of whom were overzealous to the point that they would not let returned abjurers outside to take simple toilet breaks. The King’s solution for the time was: to direct that guards might only stay in the church cemetery if there was a real risk of escape; to confirm that such intensive one-on-one guarding as prevented nourishment and toilet breaks was excessive and a sacrilege and should cease; and to confirm that it was

76 Holdsworth suggests that Edward III added clerical immunities to “exempt priests from liability to arrest while performing divine service”, and he added clerical powers in relation to heresy (Holdsworth, WS, A History of English Law, 2nd ed, Boston, Little Brown & Co, 1923, Vol 1, p. 585). 77 Idem. 78 Pollock and Maitland write simply that “the clergy resented this interference with the peace of the Holy Church” (Pollock, Sir F, & Maitland, FW, The History of English Law, Cambridge University Press, 1968, Vol 2, p. 591).

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consonant with his will that felons be able to confess their sins in accordance with the established canon law of the land. The section of Articuli Cleri that dealt with clerical concern about secular intrusions into holy church sanctuaries, demonstrates that the statutes of medieval times interrelated with the underlying law of the land in a different way than they do today. In this case, the King was called upon not so much to change the law as to shape or define its metes and bounds. The petition asked that the traditional privilege in favour of recalcitrant abjurers be reinstated. Manifesting the respect in which Edward II still held the church in the fourteenth century – and at the same time, attesting the enduring power of the church in medieval English society – the King honoured the church request to reaffirm the right of sanctuary. He also confirmed religious confession privilege which was not requested in the petition. But his sentence or judgement may not have been completely satisfactory to the church. That is because his exception allowing guards to stay in the church cemetery only if there was a real risk of escape provided obvious licence for those guards to stay outside the church but on church property and his confirmation of confession privilege came with a warning about clerical abuse.79 As a symbol of enduring church power, the existence of churches as sanctuaries from the reach of the royal courts endured until Coke’s time. They were abolished during the reign of King James I in the early seventeenth century.80 Holdsworth records that earlier attempts to circumscribe continuing perceived abuse of sanctuaries during the reign of Henry VIII81 were unsuccessful and that some of the more powerful church sanctuaries continued in de facto operation until they were extinguished in practice, by the advent of meaningful police services in the early nineteenth century.82 The purpose of this chapter again, however, is to identify the state of religious confession, and the privilege attaching to it, in pre-Reformation England. To enable a more objective and rational consideration of the historical evidence that supports the existence of a religious confession privilege before Henry VIII’s Reformation, the writer has thus proposed: first, that modern lawyers should not expect that historical proof of the existence of religious confessions will come in a recognisable modern form which presupposes a separation between church and state; and secondly, that the common law is and always has been more than the reports of decided cases, howsoever reported. It partakes of the social expectations of its time and this was especially true before there were any law reports at all.

79 80 81 82

The likely substance and focus of the warning is discussed infra, pp. 52–54. 21 James 1.c.28 §7. Holdsworth, op cit, Vol 3, pp. 306–307. Ibid, p. 307. See also Plucknett, op cit, p. 431.

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Coke’s Commentary on the Statute Articuli Cleri Coke chose to comment on four phrases from Cap X of the Statute. As quoted above they are “Abjurant regnum”, “decapitantur”, “quin possint habere vitae necessaria” and “latrones vel appellatores”. His comments upon the first and third of these phrases are largely explanatory of fourteenth century sanctuary practice and need not be considered further here.83 The full text of his two other comments are necessary if an accurate assessment of his precedential insight into religious confession privilege is to be made. He wrote: Decapitantur. This was mistaken in the petition: for no man can be beheaded but for treason; and no man could abjure for treason, because the Coroner had no power to take any confession for treason, albeit the Coroner had a special commission from the King to doe it.84 Latrones vel appelatores. This branch extendeth only to theeves and approvers indited of felony, but extendeth not to high treasons: for if high treasons be discovered to the Confessor, he ought to discover it, for the danger that thereupon dependeth to the King and the whole Realme; therefore this branch declareth the common law, that the priviledge of confession extendeth onely to felonies: And Albeit, if a man indited of felony become an approver, he is sworne to discover all felonies and treasons, yet is hee not in degree of an approver in law, but onely of the offence whereof he is indited; and for the rest, it is for the benefit of the King, to move him to mercy: So as to this branch beginneth with theeves, extendeth onely to approvers of theevery or felony, and not to appeales of treason; for by the common law, a man indited of high treason could not have the benefit of Clergy (as it was holden in the Kings time, when this Act was made) nor any Clergyman priviledge of confession to conceale high treason: and so it was resolved in 7 Hen. 5. Whereupon Frier John Randolphe the Queene Dowagers Confessor, accused her of treason, for compassing the death of the King: And so it was resolved in the case of Henry Garnet, superieur of the Jesuites in England, who would have shadowed his treason under the priviledge of confession, although in deed he was not onely consenting, but abetting the principal conspirators of the Powder Treason, as by the record of his attainder appeareth: and albeit this Act extendeth to felonies onely, as hath been said, yet the caveat given to Confessors is observable, ne erronice informant.85

The thrust of Coke’s commentary is not to prove that there was a religious confession privilege in the common law at the time of writing in the early 83 The statute 21 Jac. Regis of 1623–1624 during the reign of King James I and passed shortly before Coke wrote his Second Part of the Institutes abolished sanctuary and abjuration, though Holdsworth notes that “certain … sanctuaries existed till the eighteenth century … [when] the arm of the law was strengthened by the establishment of an efficient police system” (Holdsworth, WS, A History of English Law, Boston, Little Brown and Co, 2nd ed, 1923, Vol 3, p. 307; see also Plucknett, TFT, A Concise History of the Common Law, 5th ed, London, Butterworths, 1956, p 431), though Plucknett says effective policing was achieved in the early nineteenth century. 84 Coke, Sir E, The Second Part of the Institutes of the Laws of England, New York, Garland Publishing Co, 1979, p. 629. 85 Idem.

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seventeenth century, but that there was a treason exception to it. The existence of the underlying religious confession privilege is for Coke, self-evident. The premises of Coke’s justification of a treason exception to religious confession privilege are that: the public interest in the King’s safety demands it; since treason was an exception to “benefit of clergy”,86 it is also an exception to this other example of religious privilege; because treason was involved, Friar John Randolph disclosed the Queen Dowager’s complicity in the death of King Henry V, though he only knew of that from her confession; and though Father Henry Garnet was convicted as one of the principal Gunpowder plotters, his religious confession privilege defence would not have been accepted anyway since the privilege does not apply in a treason case. Coke relies upon the fact that treason was an established exception to the religious privilege known as “benefit of clergy” to justify a treason exception to religious confession privilege. He then cites two cases which he says confirm the principle that religious confession privilege did not apply in treason cases. Was treason an exception to “benefit of clergy”? In order to understand Coke’s statement that treason was an exception to the ecclesiastical privilege known as “benefit of clergy”, it is necessary to understand what this privilege was and how it worked. “Benefit of Clergy” and Church Jurisdictional Claims Though in its later history “benefit of clergy” became the privilege of the accused clerk, it began its life as a privilege of the church.87 Early records confirm that it was as significant a feature of French criminal law as it was in England. Though “the clerical privilege developed quite differently in the two countries”88 in later centuries, Gabel has established that the history of the privilege in France and the Frankish criminal procedure are “a valuable aid in forming opinions about the practice followed in Norman England”.89 Gabel suggests that there are two perspectives to be considered if one is to really understand the privilege – “that of the secular law and that of the Church”.90 She explains: According to common law this privilege may be defined as the exemption of members of the clergy from the jurisdiction of the temporal courts in certain

86

“Benefit of clergy” is discussed infra, pp. 44–48. Pollock, Sir F, & Maitland, FM, The History of English Law, 2nd ed, Cambridge University Press, 1968, Vol 1, p. 445; Holdsworth, op cit, Vol 3, p. 294. 88 Gabel, LC, “Benefit of Clergy in England in the Later Middle Ages”, Smith College Studies in History, Fay, SB, and Faulkner, HU, eds, Vol XIV, Nos 1–4, Oct 1928 – July 1929, Northampton Mass, cit, p. 5. 89 Idem. 90 Ibid, p. 7. 87

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criminal cases which normally would not have come within the competence of the ecclesiastical courts … From the ecclesiastical point of view … the privilege rested upon the principle that clergy should not be judged by laymen but only by their own judges according to the ecclesiastical law.91

For the church, “the benefit” was not an exemption or a privilege at all, but rather a practice or a right claimed “at common law only because of the comprehensive”92 jurisdictional claims of that common law. The different perspective of the church and state where benefit of clergy was concerned, accounts for the tension between the secular and ecclesiastical jurisdictions. But despite the tension, “benefit of clergy” endured and remained as a symbol of the different perspective of church and state in the criminal law arena. During its “long and curious history”,93 benefit of clergy changed from being “a special privilege of the clergy”94 into “a complicated series of rules exempting certain persons from the death penalty incurred by those found guilty of certain felonies”.95 Although those later “absurd and capricious”96 rules were completely disconnected from the church, they were not abolished until 1827.97 Thomas A’Becket’s martyrdom (1170) was the high water mark of church jurisdictional claims, but through contemporary eyes it was a demarcation dispute between related political powers.98 It was a part of the larger Investiture struggle99 which Henry VIII resurrected to justify his separation from Rome in the sixteenth century.100 Pollock and Maitland’s summarise the typical procedures before the thirteenth century ended:

91

Idem. Idem. 93 Holdsworth, op cit, Vol.3, p. 294. 94 Idem. 95 Idem. 96 Ibid, p. 302. Holdsworth also traces the see-sawing later statutory history of the rules as to who could claim clergy and how they could claim it noting at various times; partial abolition, partial restoration, mitigation of punishment, escape from punishment on first offence and declaration of various felonies to be without benefit of clergy (ibid, pp. 299–302). 97 7, 8 George IV. c.28. Gabel traces the severance of connection “between the privilege and the church” to the reign of Henry VII (1485–1509) and in particular to the statute 4 Henry VII c.13 (op cit, pp123–125). 98 For Berman, “the struggle of the papacy to wrest from emperor and kings the power to ‘invest’ bishops with the symbols of their authority” during the papacy of Gregory VII (1075– 1083) was an outgrowth of feudal political ideas which had previously been unsystematised (Berman, HJ, Law and Revolution, Cambridge Massachusetts and London England, Harvard University Press, 1983, pp. 85,86). 99 Berman traces the origins of the western legal tradition as a whole to the “investiture struggle” and the reforms promulgated by Pope Gregory VII (also known as the “Hildebrand Reforms” and the “Gregorian Reforms”). But he says that the term “investiture struggle” is something of an understatement. The transformation involved was much more revolutionary than that term implies and sought the complete “disengagement of the sacred and profane” spheres (Ibid, pp. 87–88). 100 Discussed in chapter three, pp. 72–77 (73, 75–76). 92

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Chapter Two A clerk is charged with murder; it is the sheriff ’s duty to arrest him. Probably his bishop will demand him. If so, he will be delivered up; but the bishop will become bound in a heavy sum, a hundred pounds, to produce him before the justices in eyre. The bishop can keep him in prison and very possibly will do so, for, should be escape, the hundred pounds will be forfeited. In the middle of the thirteenth century it is a matter of complaint among the clergy that owing to this procedure clerks may languish for five or six years in the episcopal gaol without being brought to trial. At last the justices come, and this clerk is brought before them … And … the words of the enrolment [say] … “And the said A.B. comes and says that he is a clerk and that he can not – or, that he will not – answer here. And the official of the bishop [the Ordinary] … comes and demands him as a clerk – or, comes and craves the bishop’s court”.101

Though this formality was diluted and the claim of the benefit in cases of treason was unlikely by the end of the thirteenth century,102 “benefit of clergy” was not completely abolished until the nineteenth century.103 In the meantime, ‘the benefit’ was institutionalised as a part of the secular criminal law system though it had lost any enduring meaning for the church.104 Holdsworth quotes Blackstone’s indiscriminate praise of all the laws and institutions of England105 favouring what “benefit of clergy” became after some statutory adjustment:106 The wisdom of the English legislature has, in the course of a long and laborious process, extracted by a noble alchemy, rich medicines out of poisonous ingredients, and converted, by gradual mutations, what was at first an unreasonable

101

Pollock and Maitland, op cit, Vol 1, pp. 441–442. Holdsworth, op cit, Vol 3, p. 297. 103 7,8 George IV, c.28. 104 Holdsworth says that the meaning of benefit of clergy was “completely changed” during its “long and curious history”. “It ceased to be a special privilege of the clergy, and became … a complicated series of rules exempting certain persons from the death penalty incurred by those found guilty of certain felonies”, although it was not “till the end of the sixteenth century that it began to lose its original character of a privilege of the clergy” (op cit, Vol 3, p. 294). 105 Holdsworth, op cit, Vol 3, p. 302. 106 Holdsworth attributes the change in character of benefit of clergy as a “special privilege of the clergy” to the “complicated series of rules exempting certain persons from the death penalty” which it became after the sixteenth century, “mainly to the action of the legislature; and a series of statutes of the two following centuries” (op cit, Vol 3, p. 294). For example, “[a] statute of Henry VII had attempted to restrict its scope by drawing a distinction between those who were actually in orders and those who were not” (op cit, Vol 3, p. 299, citing 4 Henry VII. c 14). More radical changes were made in Henry VIII’s reign to limit the privilege (op cit, Vol 3, p 299–300, citing the statutes 23 Henry VIII.c.I; 23 Henry VIII.c.II and 23 Henry VIII. c.3). “But the reaction against the severity of Henry VIII’s statutes, which produced the abolition of many of the new treasons and felonies created in his reign, produced also the partial restoration of the benefit of clergy” (op cit, Vol 3, p. 300, citing I Edward VI. c.12). There then follows in Holdsworth’s narrative a catalogue of extensive statutory amendments both extending and then restricting the privilege through to 1769 when “Blackstone … says that at that date no less than 160 offences had been declared to be felonies without benefit of clergy” (op cit, Vol 3, pp 300–302). 102

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exemption of popish ecclesiastics into a merciful mitigation of the general law with respect to capital punishment.107

Gabel agrees with Blackstone and Holdsworth’s summary of the evolution of benefit of clergy but adds “that the privilege at all times served to temper the rigor of the common law in an age in which the death penalty was employed to an absurd degree.108 Of its later development, she summarises: [T]he privilege, after many mutilations, was preserved in English common law two-and-a-half centuries after it had ceased to have any connection with the church … [perhaps] as a way around an inelastic harsh criminal code.109

Pollock and Maitland find the seeds of this development in “the elementary rule that the church would never pronounce a judgement of blood”.110 Pollock and Maitland’s close procedural account of a claim of “benefit of clergy” before the end of the thirteenth century demonstrates the jurisdictional contest between England’s temporal and ecclesiastical courts. But the history of “benefit of clergy” manifests that it was not simply a matter of which jurisdiction was the more powerful at a given time. For if it was simply a matter of jurisdictional power, the history of “benefit of clergy” would have been progressively marked by the narrowing of its scope and the development of exceptions at the same time as the secular courts gradually assumed the ecclesiastical jurisdiction.111 But the secular jurisdictions not only recognised this ‘clerical’ right to remove criminal charges into an ecclesiastical forum to avoid the rigours of the criminal penalties imposed by the secular jurisdiction. They nurtured and encouraged the longevity of the benefit by their broad and fictional interpretations of which defendants were clergy which enabled the privilege.112 That a religious privilege which constituted a significant part of the argument between

107 Blackstone, W, Commentaries on the Law of England, New York and London, Garland Publishing Inc, 1978, Vol 1, p. 364. 108 Gabel, op cit, p. 126. 109 Ibid, pp. 126–127. 110 Pollock and Maitland, op cit, Vol 1, p. 444. 111 Holdsworth documents the erosion of the jurisdiction of the ecclesiastical courts from the conclusion of the investiture contest in England which he dates to 1106 (Holdsworth, op cit Vol 1, p. 584) through to the beginning of the twentieth century when he says that the only remaining ecclesiastical jurisdiction “is a certain criminal or corrective jurisdiction over the clergy” (ibid p. 614). Though the ecclesiastical jurisdictional claims “were at no time admitted by the state in their entirety, … in the course of time most of these branches of jurisdiction have been appropriated by the state” (idem). 112 For example, Holdsworth observes statutory extensions allowing claims of benefit of clergy “[i]n 1547 to ‘bigami’ and in 1692 [to] women” though preserving the 1489 “distinction between those actually in orders and those not”. That 1489 distinction had differentiated between real clergy and those only allowed the benefit but “convicted of a clergyable offence”, by branding the latter. In 1576, “the court was given power to imprison such persons for … one year” and “[i]n 1717 it was enacted that such persons…were to be transported for seven years instead of being branded” (Holdsworth, op cit, Vol 3, p. 300).

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Archbishop Thomas A’Becket and Henry II in the twelfth century, could endure as an entrenched feature of secular criminal law through into the early nineteenth century, is illustrative of a sense of seamlessness in the legal system as one great whole. However, this understanding of “benefit of clergy” demonstrates more than mere seamlessness. It demonstrates that clerical privileges became common law rights. Was treason an exception to “benefit of clergy”, as Coke claimed? A Treason Exception to “Benefit of Clergy”? In medieval criminal law, there were three different levels of offences: misdemeanours,113 felonies and treasons. But there were many degrees of treasons – from those which affected the King’s forests, through those which affected his coinage, to those which affected his person and were called high treasons to distinguish them from the lesser treasons. Infidelity against one’s lord also amounted to petty treason in the twelfth century, though by the thirteenth century it was unusual to use the word treason in relation to personal crimes against anyone other than the King.114 Pollock and Maitland state that misdemeanours never qualified for “benefit of clergy” but expect that “in the thirteenth century a clerk charged with … one of the worst forms of high treason, such as imagining the King’s death or levying war against him, would in vain have relied on the liberties of the church”.115 Holdsworth agrees with both Coke and Pollock and Maitland that treason was excepted from the scope of “benefit of clergy”, but says the treason exception was not settled until the reign of Edward III. That was sixty years after the Statute Articuli Cleri was passed in 1315.116 Did Treason become an Exception to Other Church Privileges? Does the logic transfer? Did treason become an exception to religious confession privilege because it became an exception to “benefit of clergy”? Is Coke also correct that the church privilege of abjuration117 (generally following 113 “Transgressio” in the definition of Pollock and Maitland (Pollock, Sir F, & Maitland, FW, The History of English Law, 2nd ed, Cambridge University Press, 1968, Vol 1, p. 446). 114 Bellamy, JG, The Law of Treason in England in the Late Middle Ages, Cambridge University Press, 1970, p. 225. 115 Pollock and Maitland, op cit, Vol 1, p. 446. 116 Holdsworth, op cit, Vol 3, p. 297. 117 To abjure was to flee the realm of England forever and thus escape its criminal jurisdiction. If someone accused of crime escaped first to the sanctuary of the church, by ”taking an oath to abjure the kingdom of England” after confessing to the Coroner, the criminal could “proceed safely to a port assigned to him” but never return without capital penalty. Though the institution of “sanctuary and abjuration” was probably “not a product of Christianity”, it was administered by the church (Holdsworth, op cit, Vol 3, pp. 303–307).

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sanctuary) was not available when the charge was treason? Certainly as Pollock and Maitland say, “the liberties of the church”118 may not have protected a clergyman personally charged with direct complicity in treason against the King (such as Coke charged against Garnet119). It seems quite another matter to suggest that an innocent fourteenth century or fifteenth century priest who knew of treason only in confession would be coerced to disclose and found guilty of misprision120 of treason if the knowledge somehow came to light. Not only the practicalities of discovering the priest’s knowledge, but also the suggestion that judges would coerce priests to reveal their secrets when universal canon law forbade such disclosure121 exposes Coke’s theoretical deduction as a fiction. But perhaps the deduction was reasonable seventy to one hundred years after the English Reformation,122 if Coke’s other precedential assertions which support it, have merit. In his Second Part of the Institutes, Coke asserted that two cases supported his statement that treason had always been an exception to religious confession privilege. The first of those was Randolph’s case (circa 1419). In what way was Randolph’s case a precedent for Coke’s treason exception to religious confession privilege? Coke says Friar Randolph accused the Dowager Queen of treason against the current King (Henry V) – which suggests he had broken the seal of confession because he saw protection of the King’s life as a greater cause. Yet history records that Randolph was himself imprisoned as some sort of accomplice.123 Would Friar John Randolph have been protected from disclosure of Dowager Queen Joan’s confession (presumably that she was guilty of treason in “compassing”124 the death of the King Henry V) if the existence of a confession was suspected and was to be extracted from him? Or would withholding the confessional evidence in protection of the seal have seen the

118

Pollock and Maitland, op cit, Vol 1, p. 446. Garnet’s case discussed infra, pp. 55–58. Garnet’s case was the last case in which Coke functioned as the Attorney-General prosecutor. 120 Failing to report a crime to the authorities. See discussion infra in connection with Garnet’s case, pp. 55–58, and particularly notes 157 and 158. 121 Nolan, RS, “The Law of the Seal of Confession” (1913) 13 Catholic Encyclopedia, 649, 652. The universality of both the Catholic and Anglican canon law prohibitions against priests disclosing confessional secrets is discussed in detail in chapter three. However, Coke’s historical references are to a time when the only relevant canon law was Catholic and had forbidden such disclosure from the ninth century. The Fourth Lateran Council’s 1215 restatement of that canon law was still in force in the fourteenth century period upon which Coke was commenting. 122 Garnet’s case in 1606 was argued seventy years after Henry VIII’s religious Reformation was all but complete and Coke’s Second Part of the Institutes is believed to have been published some time between 1630 and 1640, after Charles I initially banned publication. All the Institutes were first completed in 1628 (Hostettler, op cit, pp. xiv, 160). See also note 1, supra. 123 The Brut or the Chronicles of England record that “Randolf ” was “taken in yle of Gernesey” and imprisoned first at Chirbourne in Normandy, then transferred to “Maunte” and then to the Tower (The Brut or the Chronicles of England, edited from MS Rawl. B 171, Bodleian Library by Friedrich, WD, Ed. Brie, Part II, London, EETS, 1908, pp. 422–423). 124 Coke, op cit, p. 629. 119

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priest found guilty of misprision of treason, as is Coke’s hypothesis? There is no Year Book or other law report of the Randolph case available. However, Edward Hogan Jr has commented on Coke’s citation of the Randolph case in his commentary: He referred to the trial of Friar John Randolph who was tried with Queen Dowager Joan, the widow of Henry IV, for conspiring to kill the King. History shows that Friar John admitted his share of the conspiracy, although this apparently had nothing to do directly with the fact that he was the Queen’s confessor. The record, meager as it is, establishes no breach of the privilege of the confessional.125

Though both the Dowager Queen and Randolph were imprisoned in 1419, neither was ever tried for the treason alleged. Queen Joan was restored by King Henry V two months prior to his death in 1422,126 and Randolph was murdered in prison in 1429 by another priest said to have been mad.127 Randolph’s case thus does not establish Coke’s treason exception to religious confession privilege. Coke’s citation of Garnet’s case as authority for a treason exception to religious confession privilege, is somewhat circular.128 Since Garnet’s case was a jury decision and the verdict was guilty, Coke may be seen as citing his own prosecutorial arguments as precedent for the conclusion in his Second Part of the Institutes published more than twenty years later. But the jury decision had become a part of history. However, Coke’s commentary on the word “decapitantur”129 as it appeared in the Statute Articuli Cleri – that beheading was only allowed as punishment for treason; that one could not abjure for treason and that the reference to beheading, was thus a “mistake in the petition”130 which originated the statute – is inaccurate. Bellamy notes a number of cases of penalty mitigation (including mitigation from “drawing and hanging” and

125 Hogan, EA, Jr, “A Modern Problem on the Privilege of the Confessional” (1951) Loyola LR 1, 10–11. Other historical reports of the case suggest that “Queen Joan, second wife and widow of King Henry IV was arrested on 1 October 1419 as a result of an accusation by her confessor, John Randolf, a Franciscan” (Bellamy, JG, The Law of Treason in England in the later Middle Ages, Cambridge, England, University Press, 1970, p. 126) on the basis that she had plotted to destroy King Henry V by sorcery and necromancy (Idem. See also Vickers, KH, Humphrey Duke of Gloucester: a biography, London, Archibald Constable & Co, 1907, pp. 276–278). Other accounts still suggest that Randolph confessed his own complicity in the plot and that his personal confession of crime was what constituted the accusation against Queen Joan (Kittredge, GL, Witchcraft in the Old and New England, Cambridge, Mass., Harvard University Press, 1929, p. 79; Vickers, op cit, p. 278). 126 Kittredge, op cit, p. 80. 127 Kittredge, idem. See also The Brut or the Chronicles of England, op cit, pp. 422–423. 128 Garnet’s case is discussed in detail infra, pp. 55–58, where its contribution to the common law of religious confession privilege is weighed. 129 Coke, op cit, p. 629. 130 Idem.

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“drawing and quartering” to “beheading”131 and “abjuration”132 respectively) during the reign of Edward II in response to Edward’s uncertain and arbitrary use of the charge of treason for political purposes.133 Bellamy’s further insight that Edward II’s unpopular summary trial methods134 and his “tampering with the scope of treason”135 fell into disuse during Edward III’s reign,136 may explain Coke’s unfamiliarity with the variability of the criminal penalties for treason when the Statute Articuli Cleri was issued in 1315. Bellamy certainly confirms that statute’s assumption that abjuration was a penalty used in cases of treason during Edward II’s reign despite Coke’s denial of the fact. But Coke needed to deny the availability of abjuration for treason, however transparent it may now appear, to prove his point that religious confession privilege, like the other religious privileges – “benefit of clergy” and “sanctuary and abjuration”, were only available in cases of felony, not treason.137 The reality is that the logic does not transfer. Treason was not an exception even to benefit of clergy until some time after 1315, and sanctuary and the right to abjure, were available for treason in 1315 to avoid the death penalty by beheading. Holdsworth’s additional observation – that the additional penalties of the forfeiture of one’s possessions and the legal widowhood of one’s wife138 which were the further consequences of abjuration, were far too great to justify that sacrifice for lesser crimes which only amounted to felonies139 – also resonates with these conclusions which follow from Professor Bellamy’s research.

131

Bellamy, op cit, p. 51. Ibid, p. 56, n3. In this case, Bellamy notes Sir John Maltrevor’s conviction by attaint for a treason following his flight to the Continent in 1429 (practical abjuration), from where “he endeavoured to win his way back into royal favour”. He cites the case as a fourteenth century case of practical penalty mitigation connected with abjuration (ibid, p. 82). 133 Ibid, p. 63. 134 Bellamy notes that King Edward II developed ‘the King’s record’ as a means of summary trial (ibid, pp. 35–53) which deprived defendants of the right to ‘put themselves on the country’ (jury trial). The theory which lay behind the new trial mode was that “[t]he king’s own word or record that a fact was so, was the most perfect form of proof obtainable since it was incontrovertible” (ibid, p. 35). 135 Ibid, p. 63. 136 This “tampering with the scope of treason” (Bellamy, op cit, p. 63) was answered by the Great Statute of Treasons in 1352 (25 Edward III) following a petition in the Commons (ibid, p 71). 137 Coke had asserted at Garnet’s trial “by the common law, howsoever … [Garnet came to know of the Gunpowder Plot] (it being crimen laesae majestatis) he ought to have disclosed it” (Carswell, D, Trial of Guy Fawkes and Others, Glasgow and Edinburgh, William Hodge and Company Limited, 1934, p. 170; Garnet’s case (1606) 2 Howell’s State Trials 217, 246). Garnet’s case is discussed in detail infra, pp. 55–58. 138 Holdsworth, op cit, Vol 3, p. 305. 139 Holdsworth cites Brooke, who doubts that sanctuary and abjuration were used for minor offences, and says “that it was confined to cases where the criminal was in jeopardy of his life; considering the serious consequences of abjuration it was probably mainly used in these cases” (Holdsworth, op cit, Vol 3, p. 305). 132

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What does all this mean in this consideration of the existence of religious confession privilege in the early seventeenth century? First, that there was no doubt that religious confession privilege existed when Coke wrote his Second Part of the Institutes (circa 1625). And secondly, that “Coke’s treason exception” as prosecutor in Garnet’s case, had no legitimate foundation in the English common law of that day. There may, however, have been other authority for the treason exception which Coke chose not to cite in his magnum opus on the common law. There are hints of that alternative authority in his use of the Latin “crimen laesae majestatis” in Garnet’s prosecution, rather than the more familiar French phrase “lese-majesté”,140 and in the then new Anglican canon law exception141 to the seal of confession.142 The Anglican canon law exception was only two to three years old at the time when Garnet’s case was tried.143 The French authority can be dated to the early fifteenth century.144 For from the fifteenth century, the canonists carried on an extensive debate as to whether priests were entitled to refuse to disclose knowledge they had gained in confession in the wake of “an ordinance of Louis XI, of December 22, 1477, commanding every citizen under pain of death to report any plot against the king or State of which he might have knowledge”.145 The French canonical conclusion, which was deplored by the more conservative canonists,146 was that treason was an exception to the seal of confession. The only remaining question about Coke’s otherwise clear confirmation of a common law religious confession privilege in the early seventeenth century are the closing words of the 1315 Statute Articuli Cleri – “ne erronice informent”. Coke did not see the need to comment on these words as he had in relation to four other phrases in the part of the statute that is relevant to religious confession privilege. He simply repeated them. The relevant text of which they form part reads, “but the confessors must take care that they do not wrongfully inform these approvers”.147

140 Kurtscheid, B, A History of the Seal of Confession, Marks FA, Trans, Preuss A, ed, St Louis and London, 1927, pp. 164, 166. 141 The first canons of the Anglican Church were published in 1603/4 and are discussed in chapter three. Canon 113 deals with religious confession and includes an exception which has been considered ambiguous by some canon law commentators. Lynn Leeder has contributed that “treason would seem to be the only candidate” for the meaning of the exception to the new canon (Ecclesiastical Law Handbook, London, Sweet & Maxwell, 1997, p. 355). 142 Canon 113, Constitutions and canons ecclesiastical/treated upon by the Archbishops of Canterbury and York, London, printed by Robert Barker and by the assigns of John Bull, 1640. 143 The canons were promulgated in 1603/1604. Garnet’s case was tried on 26 March 1606. 144 Kurtscheid, B, A History of the Seal of Confession, Marks, PA, transl, St Louis and London, B Herder Book Co, 1927, pp. 152–169. 145 Ibid, p. 153. 146 Ibid, pp. 163–169. 147 Translation courtesy of Dr Will Richardson of the Classics and Ancient History Department at the University of Auckland, New Zealand.

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Tiemann and Bush are uncertain about the existence of a religious confession privilege in Coke’s time, because they consider these closing ambiguous words diluted the privilege and limited it only to “certain prisoners”148 – namely the thieves and approvers (informers) listed. It is submitted that Best’s view of the caution is more compelling. He wrote: We may be permitted to doubt whether the caveat at the end was inserted to warn the confessor against disclosing the secrets of the penitent to others. The grammatical construction and context seem to show that it was to prevent him abusing the privilege of access to the criminal by conveying information to him from without.149

Best noticed that the warning was generally interpreted as an affirmation, not only of religious confession privilege itself, but also of the clerical obligation to observe the seal imposed upon them by Canon 21 of the Fourth Lateran Council in 1215. Best doubted that either of those suggested purposes explained the warning. Instead Best opined, in view of the connection of the phrase to clerical communication with approvers (informers), that the King was more concerned that the clergy not abuse their access and provide prisoners with otherwise unknown information about crime in general. The essence of Best’s insight is that the King suspected the clergy of providing information about unsolved crime to prisoners so that those prisoners might then disclose that new information to the King as informers in better hope of receiving his mercy. It is submitted that Best’s view is the best explanation of the words “ne erronice informent” and does not dilute either Edward II or Coke’s recognition of the accepted privilege. What the context of Coke’s reference to religious confession privilege does confirm is that his point was not to affirm the existence of religious confession privilege. That confirmation is merely an aside which fact he treats as axiomatic. Because Coke did not think the “ne erronice informent” codicil to the Statute Articuli Cleri needed any explanation, it is not clear what he understood it to mean. The point he laboured was the treason exception and that is where he cited his authority. That focus is clearer still when it is remembered that his commentary upon the statute was provided as an example of the interrelationship of the common law with the church and its privileges. The treason exception to religious confession privilege was cited as an example of the common law’s successful assertion of its supremacy. What Coke was demonstrating was that even the established privileges of the church had been part

148 Tiemann and Bush suggest that “the plain meaning of the Statute [Articuli Cleri is] … that certain prisoners had the right to be confessed by a priest” and that “Lord Coke [in his commentary] is citing what he feels to be the common law at that time, as it would apply to all priests” (Tiemann, WH, and Bush, JC, The Right to Silence – Privileged Clergy Communications and the Law, Nashville, Abingdon Press, 1983, pp. 46–47). 149 Best, WM, A Treatise on the Principles of Evidence, London, S Sweet, 1849, p. 460.

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trumped by a treason exception evolved at common law. He did not choose Randolph’s case or Garnet’s case to establish religious confession privilege except as a concession on the way to proving his premise. His premise was that the common law was so powerful that it had established a treason exception to the privileges of the church. As has been explained above, his logic in explaining the historical context of the Statute Articuli Cleri in 1315 is not completely accurate because first, it was not correct for him to state that the ecclesiastical privilege known as ‘sanctuary and abjuration’ was not then available for treason150; and secondly, because even the treason exception to ‘benefit of clergy’ was not established until more than sixty years after the Statute Articuli Cleri was passed.151 Religious Confession Privilege in Garnet’s Case. The real question in defining the metes and bounds of religious confession privilege at common law at the beginning of the seventeenth century, thus comes down to the impact of Garnet’s case upon that common law. Coke’s concern in his Second Part of the Institutes more than twenty years later was to affirm that ‘his treason exception’ to religious confession privilege was established by historical and common law authority. It is noteworthy that the extensive report of Garnet’s case includes no mention at all of either the debatable treason exceptions to ‘benefit of clergy’ or ‘sanctuary and abjuration’ that he cites as authority in the Second Part of the Institutes, or to Randolph’s case, the other common law authority which he cites in that Second Part of the Institutes. While it is possible that he did not consider such evidence appropriate when he argued Garnet’s case before a jury, his prosecution of the case did include a great deal of other historical material of arguably less relevance. More likely it is that his defence of the treason exception to all church privileges in the Second Part of the Institutes was the result of twenty years further thought. Since King James was personally involved in academic debate with continental canonists after the Garnet decision to defend ‘Coke’s treason exception’ to religious confession privilege,152 it seems likely that Coke felt pressure to justify the exception from the common law. It is therefore not surprising that he endeavoured to do that exclusively from English common law materials.

150 151 152

Supra, pp. 48–52. Holdsworth, op cit, Vol 3, p. 297. See also supra, p. 48. See note 178 infra and supporting text.

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Garnet’s Case153 Despite Coke’s statement in his Second Part of the Institutes154 that Garnet’s case affirmed that treason was an exception to both ‘benefit of clergy’ and “priviledge of confession”,155 it is difficult to confirm that precedential finding from the facts of the case. However, “priviledge of confession” was certainly raised as a defence personally156 by the Jesuit Superior of England, Father Henry Garnet. Though the report of the case is extensive, it is not clear whether he was charged with treason, in what modern lawyers might call the first degree (direct involvement in development and prosecution of the crime), treason in the second degree (an accessory before or after the fact) or misprision of treason157 (knowing of a treason and not divulging it to the authorities). In practice it did not matter since all high treasons (treasons against the person of the King) and misprision of high treason, carried the death penalty and these close modern distinctions have no significance in the way the case was argued.158 Because it was a jury trial, the only precedent value the result 153

Garnet’s case (1606) 2 Howell’s State Trials 217. Coke, op cit, p. 629. 155 Idem. 156 Prisoners were not “allowed counsel at the trial itself … until 1696 in cases of treason, [and] until 1836 in cases of felony” (Milsom, SFC, Historical Foundations of the Common Law, London, Butterworths, 1969, 360. Stone and Wells say that the year of this change occurred in 1695 but confirm that this change was not available to criminal defendants till near the beginning of the seventeenth century (Stone, J, Evidence, Its History and Policies, Revised by WAN Wells, Sydney, Butterworths, 1991, pp. 34–35). 157 One modern legal dictionary defines “misprision” as “[a] word used to describe an offense which does not possess a specific name … But more particularly and properly the term denotes either: (1) a contempt against the sovereign, the government, or the courts of justice, including not only contempts of court, properly so called, but also all forms of seditious or disloyal conduct and leze-majesty [sic]; (2) maladministration of public office; neglect or improper performance of official duty, including peculation of public funds; (3) neglect of light account made of crime, that is failure in the duty of a citizen to endeavor to prevent the commission of a crime, or, having knowledge of its commission, to fail to reveal it to the proper authorities” (Black, HC, Black’s Law Dictionary, 6th ed, St Paul, Minnesota, West Publishing Co., 1990, p 1000). The dictionary goes on to indicate that “misprision of felony” connotes concealment “but without such previous concert with or subsequent assistance to the felon as would make the party concealing an accessory before or after the fact” (idem). 158 Professor Bellamy traces how the offence of “misprision”, which first had reference to a mistake (Bellamy, JG, The Law of Treason in England in the Later Middle Ages, Cambridge University Press, 1970, p. 216) “took on additional meanings as the years passed” (idem). Though he says that “it has been [an error] to hold misprision as almost the equivalent of treason” (idem), yet his findings that Tudor statutes and Sir Edward Coke so used the word, suggest to the writer that it is not a very large error. “For as early as 1415, to know of yet to conceal treason was treason” (ibid, p. 222), which suggests that the words “misprision of treason” had become, by Tudor times, simply an adjectival way of describing a particular type of treason. The fact, too, that Coke devotes “a separate if slender chapter” (Bellamy, op cit, p. 216) to “misprisions diverse and several”, yet does not mention Garnet’s case in that chapter as he does when discussing the Statute Articuli Cleri of 1315 (Second Part of the Institutes, p. 629), suggests that either he considers that Garnet had been charged with treason proper, or that “misprision of treason” 154

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carries159 is that Coke’s final prosecution as Attorney-General160 was successful. Henry Garnet was found guilty of a high treason and was beheaded in St Paul’s churchyard on 3 May 1606,161 five weeks after his trial on 26 March 1606.162 Coke’s case for the prosecution connected disparate threads of circumstance to establish that Garnet not only knew of the plot, but that he had certainly encouraged and assisted it if he was not its primary author. His reasoning may be summarised down to four essential propositions. First, that it was a secret confederacy involving only “Catesby of the laity”.163 Secondly, that it was oathbound for seriousness and secrecy’s sake.164 Thirdly, that it was Jesuit blessed by their administration of the sacraments to all the conspirators.165 And fourthly, that it was further disguised by the Jesuit’s careful indoctrination of the conspirators in the art of equivocation.166 The “priviledge of confession” arose as an issue in the case because Garnet denied he was a principal conspirator in the case as Coke alleged.167 Garnet stated that he only knew about the issue because Greenwell168 (another Jesuit)

had indeed become a legal term of art to describe a species of treason, and that it no longer denoted a lesser version of the principle offence in the case of treason. 159 That is, the jury made the decision after hearing all the evidence. Only the jury could thus technically spell out the reasons why they decided Garnet was guilty of treason, but of course juries have never been required or even allowed to give reasons. 160 Coke was appointed Chief Justice of Common Pleas on 20 June 1606 and served till his dismissal in the autumn of 1613. He was appointed Chief Justice of King’s Bench on 25 October 1613 (which was a less lucrative post and considered a demotion) until he was again dismissed by the King on 14 November 1616 (Hostettler, op cit, pp. 61, 79, 93). 161 Carswell, D, ed, Trial of Guy Fawkes and Others (The Gunpowder Plot), William Hodge and Company Ltd, Glasgow and Edinburgh, 1934, p. 188; Garnet’s case (1606) 2 Howell’s State Trials 217, 355. 162 Each of the trials of the Gunpowder plotters lasted only one day. The first took place on 27 January 1606 and Garnet’s on 26 March 1606. Those executed following the earlier trials were Sir Everard Digby, Robert Writer, John Grant, Thomas Bates, Thomas Winter, Ambrose Rookwood, Robert Keyes and Guy Fawkes (Lyon, H, and Block, H, Edward Coke – Oracle of the Law, Littleton Colorado, Fred B Rothman & Co, 1992, pp. 158–159). Robert Catesby, Thomas Percy, John Wright and his brother had been killed in the pitched battle that attended the capture and arrest of the fleeing conspirators in Hobeach House on the Welsh border on 8 November 1605 (Pollen, JH, “The Gunpowder Plot”, 7 Catholic Encyclopedia (1913) 81, 82; Mockler, A, op cit, p. 17). 163 Carswell, D, op cit, p. 158; Garnet’s case (1606) 2 Howell’s State Trials 217, 237. 164 Carswell, D, op cit, p. 147; Garnet’s case (1606) 2 Howell’s State Trials 217, 229. 165 Idem. 166 Carswell, D, op cit, p. 153–154; Garnet’s case (1606) 2 Howell’s State Trials 217, 234–235. 167 Carswell, D, op cit, p. 136: Garnet’s case (1606) 2 Howell’s State Trials 217, 221. 168 The law reports in the writer’s possession (Cobbett’s Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanours from the earliest period to the present time, London, Printed by TC Hansard, Published by R Bagshaw, Brydges Street Covent Garden, 1809 and herein cited as “Howell’s State Trials”; along with Donald Carswell’s edition of The Trial of Guy Fawkes and Others (The Gunpowder Plot), London, Butterworth & Co, 1934) both name this particular Jesuit priest as “Greenwell” and so the writer has used that name for him throughout. However, readers should note that other commentators variously

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had consulted him about the matter. This consultation, Garnet maintained, was itself protected by the privilege of confession.169 Garnet further defended that he had done what he reasonably could to dissuade the plotters without breaching the seal of confession. He also cited his loyalty to the English King and counsel against treason in other plots as proof of his good faith.170 Coke’s rebuttal of Garnet’s defence appears to have convinced the jury. Coke said Garnet’s conversation with Greenwell was not a sacramental confession because: it contemplated a future wrong which could not be repented of in advance; the confidante was not penitent; it was told him “not as a fault, but by way of consultation and advice”;171 and it was told on behalf of others, and not by the sinners themselves.172 Coke added that even if it were a confession, it was not privileged for two reasons. First, because “[Garnet] might and ought to have discovered the mischief, for preservation of the State, though he had concealed the persons”173 (the implication being that Garnet would not then have broken the Seal). And secondly, because “it [was] crimen laesae majestatis … by the common law174 … he ought to have disclosed it”.175 Cross-examination and comment from two176 of the nine Commissioners present177 doubting that Garnet’s communication with Greenwell could ever

name him as “Greenway” (Kurtscheid, B, A History of the Seal of Confession, Authorized translation by the Rev FA Marks, Edited by Arthur Preuss, St Louis and London, B Herder Book Co, 1927; Lyon, H, and Block, H, Edward Coke – Oracle of the Law, Littleton, Colorado, Fred B Rothman & Co, 1992; Pollen, JH, “Henry Garnet” (1913) 6 Catholic Encyclopaedia 386 and “The Gunpowder Plot” (1913) 7 Catholic Encyclopaedia 81) and “Greenaway” (Mockler, A, Lions Under the Throne, London, Frederick Muller Ltd, 1983). 169 Other religious confessions were referenced at the trial. For example, the first five plotters’ confession to the Jesuit Gerard in May 1604 immediately after they had made their “collective oath of secrecy and constancy” (Carswell, D, op cit, p. 147; Garnet’s case (1606) 2 Howell’s State Trials 217, 229) and Garnet’s own overheard confession to his brother Jesuit Hall while both were incarcerated in the Tower (Pollen, JH, “The Gunpowder Plot”, 7 Catholic Encyclopedia (1913) 81, 84). But the “priviledge of confession” was not raised as a defence to either of them. 170 Carswell, D, op cit, p. 161–162; Garnet’s case (1606) 2 Howell’s State Trials 217, 240–241. 171 Carswell, D, op cit, p. 169; Garnet’s case (1606) 2 Howell’s State Trials 217, 246. 172 Carswell, D, op cit, p. 169–170; Garnet’s case (1606) 2 Howell’s State Trials 217, 245–246. 173 Carswell, D, op cit, pp. 169–170; Garnet’s case (1606) 2 Howell’s State Trials 217, 246. 174 The report provides no detail of what common law Coke was referring to. In light of the fulsome detail otherwise provided in what reads close to a verbatim report, it appears that the simple assertion stood on its own and was not contested. 175 Carswell, D, op cit, p. 170. Garnet’s case (1606) 2 Howell’s State Trials 217, 246. Though Coke referred to “the common law” at the trial, the report does not reveal whether he cited any authority or whether any authority was discussed. Given the otherwise thorough fulness of the report, it seems unlikely that he did cite those authorities that he later referenced in his Second Part of the Institutes. 176 The Earls of Northampton and Salisbury. 177 The other seven Commissioners were Sir Leonard Holyday, Lord Mayor; the Earls of Nottingham, Suffolk and Worcester; the Lord Chief Justice of England, Sir John Popham; the Lord Chief Baron of the Exchequer; and Sir Christopher Yelverton, kt., one of His Majesty’s Justices of the King’s Bench (Carswell, D, op cit, p. 131; Garnet’s case (1606) 2 Howell’s State Trials 217).

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have been a religious confession, must also have reinforced Coke’s prosecutorial rebuttal of Garnet’s religious confession privilege defence in the minds of the jurors. Though these facts and this result in a jury case may not meet modern precedential standards in establishing a rule of law, they do prove that the “priviledge of confession” was not unknown to English law. If Garnet’s religious confession privilege defence had no substance whatever, Coke would surely have said so both in his prosecution of the case and in his later commentary. That King James himself subsequently entered into a correspondence with canon law authorities in Europe in an apparent effort to establish “Coke’s treason exception” to religious confession privilege as a matter of Catholic practice,178 is similarly probative of acceptance of the standing of “the priviledge of confession” more than 60 years after King Henry VIII’s Reformation was complete. Conclusion Chapter two has demonstrated that there was practical recognition of religious confession privilege as late as the seventeenth century. Certainly the doctrine was not as defined as it is when expressed in modern statutes. However, it is clear that a priest would not be compelled to disclose the contents of any confession made to him in the course of his ministry, unless perhaps the facts confessed to him disclosed a high treason. Chapter three will document the evolution of the “priviledge of confession” in canon law and will explain how and why it became embedded in the common law. In particular, King Henry VIII’s reception of all existing canon law as his ecclesiastical law of England will rebut Wigmore’s implication that “Papal ecclesiastical practices prior to Henry VIII”179 including the seal of confession had been abolished at the time of the English Reformation.

178 Kurtscheid has written that “James I … (1607) wrote an apology of the oath of allegiance under the title Triplici Nodo Triplex Cuneus, sive Apologia pro Iuramento Fidelitalis, in which he attacked … the doctrine of the Jesuits concerning the Seal. [Cardinal] Bellarmine answered under [a] pseudonym … In reply, James republished his apology with an amplified preface and sent it to the various courts, which induced Bellarmine to write a reply in his own name” (Kurtscheid, B, A History of the Seal of Confession, Marks, PA, transl, St Louis and London, B Herder Book Co, 1927, p. 157). 179 Wigmore, JH, Evidence in trials at common law, Revised by John T McNaughton, Boston, Little Brown, 1961, Vol 8, p. 869.

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RELIGIOUS CONFESSION AND PRIVILEGE IN CANON LAW Introduction Coke’s recognition of a religious confession privilege in the seventeenth century does not define its metes and bounds. He simply says that there is a religious confession privilege save in cases of treason, but the exception does not explain the privilege itself. Readers of his Second Part of the Institutes are expected to know what constitutes a privileged religious confession – which lack of definition is itself testimony to the joinder of church and state which was a theme of chapter two. While Garnet’s case suggests that there was a distinction even in the seventeenth century between regular and irregular confessions, it is doubtful that the case has common law precedential value since it was a jury trial and the prosecution’s untested assertions about regularity were swamped in the end by the circumstantial case that Garnet was guilty of treason in the first degree. The purpose of chapter three is to explain what religious confession meant when Coke acknowledged its existence in the common law – and what it was about religious confession that was privileged. The influence of canonical recognition of the seal on the common law will then be discussed before various expressions of its continuing status as part of the fabric of the general law of England are weighed. This chapter two and three historical part of the book concludes that recognition of religious confession privilege was so thoroughly respected as a common law principle in the seventeenth century that there is no record of its ever being contested except in Garnet’s case. And that case was only “indecisive”1 in the sense that the existence of religious confession privilege itself was uncontested. Origins of Confession While Roman Catholic apologists like to trace modern confessional practice to various biblical statements made by Christ himself,2 there is fairly general 1 Wigmore’s use of the word “indecisive” to describe Garnet’s case does not acknowledge that the historical and canon law roots of the common law might have justified a more careful review (Evidence in Trials at Common Law, Revised by John T McNaughton, Boston, Little Brown, 1961, Vol 8, p. 869). 2 For example “the keys of the kingdom” given Peter to bind and loose on earth and in heaven (Matthew 16:16–19).

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consensus that the early Christian church that was developed after his death, practiced a form of public confession.3 While it is not clear exactly what form that confession took, the use of the Greek word “exomologesis”4 to describe it suggests that intending new converts would address the congregation and renounce their old sins in a public and generalised way. “Exomologesis” however, is only a reference to a form of public confession and it is not clear whether it was available only to new converts or to existing members with something to shrive; whether the confession had to be made in a public meeting or simply in front of representatives of the relevant congregation; whether it was a regular occurrence for example repeated weekly or monthly; whether it was preceded by private interview with clerical leaders; whether it was accompanied by some public imposition of penitential restitution; or whether it was only used in connection with public as opposed to secret sins. It may be that all of these further questions were the later questions of a successful institution grown large and forced to grapple with issues of administrative consistency and efficiency. McNeill is confident that before the end of the second century it routinely took place in Sunday meetings and necessarily took place before the clergy when the sins were more serious, though it seems congregational publicity was all that was required since persecution often required that the ‘public’ meetings themselves took place in secret.5 This process was soon embellished, for Murray recounts an elaborate liturgy of St Ambrose in 383 AD which took days and saw all penitents, as Adam and Eve, symbolically expelled from the church on Ash Wednesday before being readmitted on Holy Thursday.6 McNeill says that none of “the third century fathers authorized the repetition of the exomologesis”,7 but notes that the “considerable numbers who lapsed into ‘idolatry’ in persecution, and afterward insistently sought restitution”,8 probably explains the advent of confessional repetition. Meninger is probably cynical when he suggests that confession became private after Constantine to make the church more attractive to would-be converts9 but 3 McNeill, JT, A History of the Cure of Souls, New York, Evanston and London, Harper & Row, 1951, pp. 90, 91. Note also that EF Latko says that “exomologesis … has a variety of meanings, but ordinarily signifies an avowal of sin, made either to God or to man”, but “etymologically [it] denotes open declaration and implies public confession [and was employed] in the primitive Church … for confession of sins and for the sacramental procedure involving austere discipline” (Latko, EF, “Auricular Confession” (1966) 4 New Catholic Encyclopedia 131). See also Meninger, K, Whatever became of sin?, New York, Hawthorn Books Inc, 1973, p. 25. 4 Literally, exomologesis means “to confess in full” or “to make full acknowledgement” (http://monarch.gsu.edu/jcrampton/foucault/techterms.html last visited 8 July 2006). 5 McNeill, op cit, p. 91. 6 Murray, L, Confession: Outmoded Sacrament?, London, Geoffrey Chapman, 1972, pp 156, 157. 7 McNeill, op cit, p. 93. 8 Idem. 9 Meninger, op cit, p. 26.

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McNeill and Kurtscheid propose a more reasoned explanation. McNeill suggests that from “an early period a private interview normally preceded the public act”,10 and cites authority in Origen (died 253 AD) and Ambrose (died 397 AD) for private confession to a priest, but notes that reconciliation still required the further step of public confession.11 For Tertullian, writing shortly before 200 AD, public penance was still required for “secret grievous sins”,12 but in the Spanish Church before 400 AD, “only a confession to the bishop or to the presbytery”13 was required and the public aspect was reduced to a generalised acknowledgement of sin and a request for pardon and support from the congregation.14 While Kurtscheid apologetically suspects that even Tertullian’s public penance around 200 AD was generalised, the detail and penance having been prescribed in private,15 he is certain that St Augustine’s failure to mention public confession means “that since the close of the fourth century secret confession of secret transgressions was deemed sufficient”.16 While McNeill is not so convinced by this failure to mention public confession in St Augustine, since he “offers no evidence for the existence of private penance with absolution”17 either, he acknowledges “the African father[’s] … habitual … use of a private interview to receive confessions”.18 But though confession had become a private affair by the end of the fourth century, there was no canonical seal nor reference to an expectation of confidentiality in the priest. Formal approval of secret confession and a disapproval of public recitation of sin at a papal level is variously attributed,19 but it is in Celtic custom in Ireland that the penitential discipline which led to the seal is sourced.20 Though Kurtscheid “finds no specific evidence in Church law of insistence upon secrecy before the middle of the ninth century”,21 “Ambrose in the fourth century had felt obligated to tell none but the Lord the nature of offenses revealed to him in private”.22 Kurtscheid says that “the rudiments of the Seal are recognizable”23 from this early date, since the church was endeavouring “to remove everything that might deter the faithful from

10

McNeill, op cit, p. 94. Ibid, pp. 94–95. 12 Kurtscheid, op cit, p. 18. 13 Ibid, p. 19. 14 Ibid, p. 17. 15 Ibid, pp. 16–18. 16 Ibid, pp. 21, 37. 17 McNeill, op cit, p. 96. 18 Idem. 19 Ibid, pp. 98–99. See also Kurtscheid, op cit, pp. 51–64. 20 The Irish origins of the seal attached to confessional practice are discussed infra, pp 79–81. 21 McNeill, op cit, p. 117 – summarising Kurtscheid’s conclusions. 22 Idem. See also ibid, pp. 45–46. 23 Ibid, p. 47. 11

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confessing their sins”24 but it is the fact that public penance was never even introduced into Ireland that focuses his attention on that country as the source of the seal.25 Murray says the idea that people can “go to a priest to get absolution … any time they take it into their heads to sin”26 was an idea that had germinated in Spain though “[t]he Council of Toledo, AD 589 [had] thunder[ed] against this intolerable abuse”, considering it “disgusting” that “people [would use] a form of penance contrary to the canonical institutions”.27 For McNeill, that the Irish and Welsh Penitential Books which were copied by “English and Continental imitators, from the sixth to the sixteenth century”28 evidences a penitential discipline quite different to that which had obtained in the Patristic Age.29 “Instead of being public and unusual,30 confession and penance had become private, frequent and common to all”,31 and the roots for these Irish origins lay “in the culture of the Celtic peoples”.32 Murray says that [w]hen St Patrick landed in Ireland [in] AD 432, he seems never to have thought of introducing the classical penitential system [but rather] … his missionaries developed a new style by grafting ecclesial penance on to an old monastic custom whereby novices went to the old for spiritual advice and to confess their faults.33

In fact, the Irish even had “a word for penitence (aithrige or athirgi etc) … in old … tales scarcely affected by Christianity”.34 The Celts in Wales and Gaul too had pre-Christian confessional traditions and some scholars have even “shown remarkable parallels between ancient Irish and ancient Indian practice”35 where their spiritual directors, judges and wise men were involved, and the people “accepted the obligations they imposed”.36 For McNeill, “the private character of … Celtic penance”37 is manifest in its complete “disassociati[on] from church assemblies”38 and there is no “public exposure”39 nor need as in

24

Idem. Ibid, p. 65. 26 Murray, L, Confession: Outmoded Sacrament?, London, Geoffrey Chapman, 1972, p. 160. 27 Ibid, p. 159. 28 McNeill, op cit, p. 113. 29 Ibid, p. 112. The Patristic Age is the age of Christ’s Apostles, and the Bishops who succeeded them, who governed the church in the early centuries after Christ was crucified. 30 Idem. “Unusual” in the sense that confession to the congregation in the Patristic Age seems to have been a one-off event in the life of the penitent and the discipline imposed was unique to individuals. The Penitential Books gradually standardised discipline for similar offences. 31 Idem. 32 Ibid, p. 115. 33 Murray, op cit, p. 160. 34 McNeill, op cit, p. 115. 35 Ibid, p. 116. 36 Idem. 37 Idem. 38 Idem. 39 Idem. 25

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the classical tradition for a “public act of reconciliation”.40 Accordingly, when the Greek Theodore of Tarsus became Archbishop of Canterbury,41 he found the Irish system so well established and accepted, even in England, that “he yielded to the Irish practice”.42 Kurtscheid suggests that this surrender was so as not to “render the conversion of Anglo-Saxons more difficult”43 which would have been the result of insisting on the “humiliating [classical] penance”.44 Murray says that it was the imprimatur of Theodore’s authority, who was well seasoned in the classical Roman and Greek penitential systems but who nonetheless adopted the Irish development, which enabled it to flourish and gradually spread through the whole church. In time, the process by which the Irish church developed their traditions into sacramental confession “came to be recognized as a stroke of genius”.45 Her useful summary of that development records four changes. First, “[a] transition from a communal, social, ecclesiastical celebration to a private ceremony”; secondly, “[a] transition from a statement in which all the people of god have an active role to one in which ordained priests are active”; thirdly, “[a] transition from a sacrament in which only serious sins are confessed to one in which venal sins and imperfections are confessed”; and fourthly, “[a] transition from a sacrament rarely received, to a commonly frequented sacrament”.46 The evolution of confession thus manifests the church’s desire to ameliorate the severity of its classical penitential regime as it grew internationally, both because such severity was difficult and time-consuming to administer,47 and because it was unattractive to would-be converts. All that remains to complete a tracing of the modern Catholic sacrament of confession and penance is to identify the origins of the seal itself and its penalties, for they have remained virtually unchanged since they were finally enshrined in the 21st canon of the 4th Lateran Council of 1215. Origins of the Seal In his endeavour to prove the historical and doctrinal seamlessness of the Catholic practice with regard to the seal of confession, Kurtscheid finds it 40

Idem. There is variation in the dates of Theodore’s archbishopric at Canterbury. Kurtscheid dates his penitential manual from which the information upon which all the commentators rely to 568 AD (Kurtscheid, op cit, p. 65), whereas McNeill dates his term as Archbishop in England to 668–690 AD (McNeill, op cit, p. 117). Murray also dates the commencement of his bishopric to 668 AD (Murray, op cit, p. 160), which suggests there is a typographical error in the earlier work of Kurtscheid. 42 McNeill, op cit, p. 116. 43 Kurtscheid, op cit, p. 65. 44 Idem. 45 Murray, op cit, p. 160. 46 Ibid, pp. 167–169. 47 McNeill, op cit, p. 98. 41

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fairly thoroughly established in practice if not in canon law by Pope Leo I’s papal letter in 459 AD.48 In that letter, the Pope addressed “the bishops of Campania, Samnium and Picenum”, in whose diocese it had been “customary, when public penance was accepted, to read publicly in church, not only the names of the penitents … but also the transgressions for which each one did penance”.49 Kurtscheid calls this letter “the first papal decretal safeguarding the secret of confession”.50 The Pope identified the custom of so reading secret transgressions in open assembly51 as an abuse that must “by all means cease”52 – that “the manifestation of conscience (secret sins) in secret confession to the priests fully suffices”.53 Kurtscheid does however recognise the existence of other commentary down to the ninth century, which drew an evolutionary distinction between secret or conscience sins and those public sins which came to be defined in church canon law as scandal.54 In the earlier days of this evolution, the nature of the sin was more indicative of whether a public penitential sanction should attach,55 but gradually, the question of whether the sin itself was publicly known – in which event the sinner would need to be excommunicated and readmitted to the church56 – became the factor most determinative of whether any public penance was required. Cases of clerical penance created particular problems if the seal was not inviolable, since the withdrawal of clerical office after secret confession of secret sins – a very public penance – was incongruous with the lay rule which required only secret penance for secret sins.57 However, in England, more than a century before the Fourth Lateran Council of 1215 put the inviolability of the seal beyond doubt anywhere in the church,58 the seal was already inviolable. For Lanfranc, whom William the Conqueror had appointed Archbishop of Canterbury in 1070,59 wrote “in his treatise De Celanda Confessione”60 He sins against this sacrament [i.e., Penance] who in any manner whatever arouses public suspicion regarding what has been confessed to him, or causes penitents to be defamed.61

48 49 50 51 52 53 54 55 56 57 58 59 60 61

Kurtscheid, op cit, pp. 51–58, 83–84. Ibid, p. 51. Idem. Ibid, p. 52. Ibid, p. 54. Ibid, p. 55. Ibid, pp. 57–76. Ibid, p. 62. Ibid, p. 70. Ibid, pp. 69–76. McNeill, op cit, p. 113. Lanfranc was Archbishop of Canterbury 1070–1089. Kurtscheid, op cit, p. 92. Idem.

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Lanfranc is emphatic on the point for the duty of confidentiality remains even if the supposed penitent turns out to be a recidivist sinner and “persevere[s] in his guilt”.62 In these circumstances, Lanfranc holds that “the confessor should bear with, after the example of Christ, who bore with Judas to the end”.63 “He who reveals a confession commits a crime deserving of death”.64 Lanfranc’s successor as Archbishop of Canterbury, Anselm (1093–1109), was similarly firm about the inviolable secrecy of confessional secrets and held that confessions must be kept “absolutely secret, if confession is to serve its purpose”65 and unbar “the salutary road to penance … against those who would rather conceal their transgressions until death than expose themselves to the suspicion of crime”.66 Though there were controversies in Europe in later centuries about internal church use of confessional information and whether confessional information might be used to warn a monarch of a plot, so long as the penitent was not revealed,67 Kurtscheid concludes that the position in England was well settled against any disclosure for any cause whatever by the end of the eleventh century.68 The need for such strong pronouncements in favour of the inviolable seal of confession and against any disclosure whatever of the contents of a confession were essentially a response to abuse.69 Lanfranc’s concern, shared and expressed later by the renowned canonist Peter Abelard (1079–1142), was the need for discretion in choosing one’s confessor, since some “priests are lightminded and careless, and it is difficult for them to control their tongue”.70 The seal was imposed and finally canonised with penalty in the Fourth Lateran Council of 1215 because respect for the sacred confidence due the sacrament of confession had not proven sufficient to impress this obligation of secrecy upon all priests. Hence the 21st canon of the Fourth Lateran Council declared: Let the priest absolutely beware that he does not by word or sign or by any manner whatever in any way betray the sinner: but if he should happen to need wiser counsel let him cautiously seek the same without any mention of person. For whoever shall dare to reveal a sin disclosed to him in the tribunal of penance we decree that he shall be not only deposed from the priestly office but that he shall be sent into the confinement of a monastery to do perpetual penance.71

62 63 64 65 66 67 68 69 70 71

Ibid, p. 93. Ibid, pp. 93–94. Ibid, p. 93. Ibid, p. 75. Idem. Ibid, pp. 129–169. Ibid, pp. 94–95. Ibid, p. 95. Ibid, p. 96. Nolan, RS, “The Seal of Confession” (1913) 13 Catholic Encyclopedia 649

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For Kurtscheid, this canon “contains no essential innovation either concerning the seal or the precept of annual confession”72 because “the direct violation of the seal was looked upon as a crime”73 from the eighth century onwards. Though Nolan74 with Kurtscheid notes the “renew[al of this law] during the succeeding centuries by numerous provincial councils and diocesan synods”,75 these ordinances merely repeated and inculcated the Lateran canon which remained as the canon law of the church in place down to and through Henry VIII’s Reformation.76 The seal of confession, protecting as it did the Sacrament of Penance, was one of those papal laws which was “meant to have the force of ‘binding statute law’ in a modern sense”.77 But did these papal laws indeed have effect as “ ‘binding statute law’ in a modern sense”,78 as Helmholz suggests was their intent? In the remainder of chapter three I answer that question by tracing the canon law and church influence in three chronological periods. First, in the pre-Norman period when canonical sources suggest that the seal had become respected in English practice, I note the congruity of the catholic canon law and such so-called secular law as English kings passed. Secondly, in the two centuries which followed the Norman conquest, I show the growth of church power before it slowly declined ending in England with King Henry VIII’s Reformation. And thirdly, despite that decline, I explain that Henry VIII’s Reformational decision to retain intact all previous canon law including the canon law regarding the seal of confession, operated to preserve religious confession privilege. England’s Catholic History Before the Norman Conquest Plucknett observed that Roman Catholic influence in Britain began in Roman times as the church gradually took over the empire and the Roman Empire became the Holy Roman Empire.79 While that influence began with Agricola’s

72

Kurtscheid, op cit, p. 115. Ibid, p. 79. 74 Nolan, op cit, p. 650. 75 Kurtscheid, op cit, p. 127. 76 The practical effect of the seal of confession in Roman Catholic canon law has remained the same to the present day, though the expression has been modernised. King Henry VIII’s retention of all of the Roman Catholic canon law operative at the time of the separation from Rome, other than changes which he personally approved, is discussed infra, pp. 75–77. 77 Helmholz, RH, Canon Law and the Law of England, London and Ronceverte, The Hambledon Press, 1987, p. 261. 78 Idem. 79 Plucknett observes that despite Roman efforts to “incorporate with [the Hellenistic religion] … the religions of Isis, Mithras, Christ and others … as an official department [with] … its priests as civil servants … Christianity would not accept this inferior position” (A Concise History of the Common Law, 5th ed, London, Butterworths, 1956, p. 4). Accordingly, “slowly, 73

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“systematic conquest of the island”80 beginning in 43 AD, barbarian defence preoccupation at home diluted both Roman and Christian influence until the end of the sixth century under St Gregory the Great (590–604).81 Following the visit of the monk Augustine,82 Pope Gregory’s emissary in 597,83 the catholicisation of England continued in earnest. Hence by the reign of Edward the Elder (921–924), Nolan noted secular (as opposed to canon laws passed by the church) “laws concerning confession”:84 And if a man guilty of death (ie who has incurred the penalty of death) desires confession let it never be denied him.85

This injunction from Edward the Elder’s laws was repeated in the forty-fourth of the secular laws of King Canute (1017–1035), with the following preface: This then is the secular law which by the counsel of my ‘Witan’ I will that it be observed all over England.86

Ethelred’s laws (978–1016) declared: And let every Christian man do as is needful for him: let him strictly keep his Christianity and accustom himself frequently to shrift (i.e., confess): and fearlessly declare his sins.87 [The parentheses are Nolan’s.]

Nolan concluded that this very close connection between the religion of the Anglo-Saxons and their laws, many of which were purely ordinances of religious observance enacted by the State [and] the repeated recognition of the supreme jurisdiction of the pope … led conclusively to the opinion that the ecclesiastical law of the secrecy of confession was recognized by the law of the land in Anglo-Saxon England.88

Though Nolan is a little generous in his conclusion, since neither Edward the Elder, Ethelred nor Canute said anything about canonical secrecy, his identification of congruity between church and state in matters of law seems fair before the Norman Conquest. But is it fair to say that there was congruity between such secular laws as were passed after the Norman Conquest as there had been before 1066?

but certainly, the Empire ruled from Rome was being replaced for many purposes by Christendom ruled by the papacy” (ibid, p. 5). 80 Plucknett, op cit, p. 6. 81 Ibid, p. 8. 82 Not to be confused with St Augustine who lived between 354 and 430 AD. 83 Berman, HJ, Law and Revolution: The Formation of the Western Legal Tradition, Cambridge Massachusetts and London England, Harvard University Press, 1983, p. 54. 84 Nolan, op cit, p. 649. 85 Idem. 86 Idem. 87 Idem. 88 Idem.

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Though Plucknett notes that William the Conqueror (1066–1081) was a “devout Christian”89 himself, he yet insisted that the Church should keep the place which he assigned to it, and in fact he secured an effective control over its policy, notably in appointments to the higher dignities.90

Plucknett further notes that William’s long quarrel with the church in the twenty years before the English expedition was settled with “the help of Lanfranc whom he afterwards appointed Archbishop of Canterbury”.91 These disputes with the church were not an English specific issue and, in the wider European historical context, are variously discussed as the “Investiture Contests”,92 the Hildebrand Reforms and the Gregorian Reforms.93 There are a number of threads which trace the ebb and flow of the English King’s relationship with ‘The Church’. The question of whose was the right to appoint the highest clerical officeholders was one of those; another was what temporal roles the clergy could fulfil in the King’s realm; and another, perhaps the most famous of all, was how much jurisdiction the King’s courts could exercise over the clergy – and in the explicit context of this book, what were the privileges of the clergy before the King’s courts. The writer has dated the investiture contests in England to at least William the Conqueror’s time, and has already explained that the history of “benefit of clergy”94 demonstrates the power of the church and thus the respect in which its privileges were held. The unlikelihood that the clergy would be coerced to disclose confessional secrets during a period when even secular judicial roles were held by clergy will be explained below.95 But William’s practical power to appoint his own choice even as Archbishop of Canterbury demonstrates that modern separation of church and state still lay in the future and that in eleventh century England, it was simply a question of who had what political

89 Plucknett, TFT, A Concise History of the Common Law, 5th ed, London, Butterworths, 1956, p. 11. 90 Idem. 91 Idem. There were seven separate popes in power during this twenty year period beginning with Clement II (1046–1047) and ending with Alexander II (1061–1073) see http://www .newadvent.org/cathen/12272b.htm (last visited April 10, 2004). Lanfranc served as Archbishop of Canterbury between 1070 and 1089. 92 Berman says the term “Investiture Struggle” is something of an understatement. The transformation involved was much more revolutionary than that term implies and sought the complete “disengagement of the sacred and profane” spheres (Berman, HJ, Law and Revolution, Cambridge Massachusetts and London England, Harvard University Press, 1983, pp. 87–88). 93 These reforms are named after the monk, Hildebrand, who became Pope Gregory VII (Berman, op cit, p. 87). 94 Supra, chapter two, pp. 44–48. 95 Infra, pp. 70–72.

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power over church appointments. For the spirit of the Reformation which blended sixteenth century nationalism with changed concepts of church and state planted during the Investiture contests from the eleventh to the thirteenth centuries was still hundreds of years in the future. Plucknett has noted that before William had appointed the priest Lanfranc as Archbishop of Canterbury,96 that same Lanfranc had helped William settle his struggle with the church in Normandy before he crossed the channel. Though William may have broken protocol when he made the appointment as Archbishop instead of the Pope, the reality is that a political compromise had been reached which reconciled the personalities (William and the Pope) and suggests that their institutions were never separated in practice. Although Harold Berman believes that the Investiture struggle was the revolutionary watershed from which the entire separate church/state western legal tradition flowed,97 he confirms that the contest was contemporarily fought as an internal political struggle in which the upper hand see-sawed back and forth.98 William the Conqueror not only “appointed the bishops in his domain and controlled them99 … he declared that the King of England and Duke of Normandy had the power to determine whether a pope should be acknowledged by the church in England and Normandy”,100 and asserted a veto power over the promulgation of new canon law and “ecclesiastical penalties imposed on his barons and officials”.101 While the Conqueror’s son William Rufus (William II, 1081–1100) defied the efforts of Pope Gregory VII (1073– 1085) and his successors to assert papal authority over the English clergy, William Rufus’ brother, King Henry I (1100–1135), made “substantial compromises with respect to the appointment of clergy”102 in return for papal support for his claim of Normandy from his brother Robert. Indeed, “[t]he Concordat of Bec (Normandy) in 1107103 anticipated the Concordat of Worms of 1122”104 which settled the so-called Investiture Contest in Europe when the Emperor transferred the right “to invest bishops and abbots”105 to the Pope though retaining “the right to be present at [their] elections”.106 However the

96

Plucknett, op cit, p. 11. Berman, op cit, pp. 99–100. 98 Ibid, p. 94. 99 Ibid, p. 437. 100 Idem. 101 Idem. 102 Idem. 103 Henry I ruled both Normandy and England, as had his brother (William Rufus) and his father (William the Conqueror) before him. Bec is in Normandy and was the place where he settled his controversy with the Papacy – the Pope at the time of the Concord was Paschal II (1099–1118). 104 Berman, op cit, p. 437. 105 Idem. 106 Idem. 97

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European settlement was more of a settlement than the Concordat of Bec, since it followed Pope Gregory VII’s successful deposition of the Emperor Henry IV in 1080107 and the sporadic civil war which followed “between the papal and imperial parties” until Worms in 1122. In England, papal assertion of the “independence of the clergy from secular control”108 was not really complete until after Becket’s martyrdom in 1170. The point for this book is that the power of the church grew stronger in England after the Norman Conquest and reached its high water mark after Becket’s martyrdom. That high water mark was amply demonstrated by the public penance that the English King Henry II (1154–1189) was obliged to do “by walking barefoot to Canterbury”109 – and by his submission in 1172 “to a papal legate on the heights of Avranches …[where] before its cathedral [he] publicly renounced those portions of [Henry II’s] Constitutions of Clarendon that were ‘offensive’ ”.110 In such an age it is unthinkable that any judge in any jurisdiction would have tried to force a priest to disclose a sealed and sacred confession, and certainly not soon after the 4th Lateran Council in 1215 had made that seal canonically binding upon the whole church.111 Though the power of the Church waned subsequently, its authority and the King’s willingness to pass ‘secular laws’ protecting and restating its privileges just as Edward the Elder, Ethelred and Canute had done in pre-Norman times, are demonstrable one hundred years later in 1315 when Edward II passed his Statute Articuli Cleri112 which was discussed in chapter two.113 That most of the judges who manned the royal courts were clerics until Pope Innocent IV (1243–1254) banned such service, also demonstrates the pervasive influence of the church in the secular realm. Clerical Service in the Royal Courts Nolan quotes Pollock and Maitland extensively as he makes his point that it was highly unlikely that a secular judiciary, manned by ecclesiastics, would deny the inviolability of the confessional seal when the confession was a sacrament of their faith. Again, let us remember that in some districts such as Durham and Chester, bishops exercised temporal jurisdiction. Even in the King’s Courts, as Lord Coke points out, oftentimes the judges were priests before Innocent IV prohibited

107 108 109 110 111 112 113

Ibid, pp. 87, 522. Ibid, p. 87. Ibid, p. 256. Idem. The evolution of the confessional seal was explained supra, pp. 63–66. 9 Edward II, st.1. Chapter two, pp. 39–44.

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priests from acting as judges. Pollock and Maitland’s “History of the Laws of England” gives us a specimen date, that of 16 July 1195, on which there sat in the Court of King’s Bench an archbishop, three bishops and three archdeacons. The same book tells us that “it is by popish clergymen that our English common law is converted from a rude mass of customs into an articulate system, and when the ‘popish clergymen’ yielding at length to the pope’s commands no longer sit as the principal justices of the King’s court the golden age of the common law is over.”114

Holdsworth suggests that the churchmen were reluctant to relinquish these secular seats, some being “more at home when … hearing assizes as justiciarii domini regis than when they were sitting as judices ordinarii”115 and others were concerned that without their direct involvement in the secular courts, church influence and jurisdiction would be eroded – which is exactly what happened.116 But it is again the question of another paradigm to ask why Pope Innocent IV would direct this retreat. Eight centuries later, it seems easy to see that this retreat to ministerial duties diluted the influence and jurisdiction of the church, but even in the present no one has such twenty-twenty prescience. In his discussion of the later interplay between the royal writs of prohibition and ecclesiastical sanctions,117 Helmholz observed: It may have seemed unwise to push royal claims too far. Community acceptance of the place of the ecclesiastical courts and generally shared agreement about the proper jurisdictional boundaries may have stood behind the procedural features which kept the writ from being determinative.118

The same church influence that later slowed the march of the royal writ of prohibition in its assertion of royal judicial jurisdiction, was being asserted by Pope Innocent IV when he curtailed clerical service in the royal courts. The most likely reason for his direction of an end to such service seems to have been his wish to dilute the respect in which royal courts were held because of the authority those courts enjoyed when clerical personnel presided. Regardless of the reason why Pope Innocent IV directed that clergy should no longer sit

114 Nolan, op cit, p. 652. Berman confirms that “[i]n the twelfth and thirteenth centuries … most of the men who served as officials and judges and counsellors of Kings and emperors were clerics who owed at least half of their allegiance to the pope” (op cit, p. 147). 115 Holdsworth, WS, A History of English Law, 2nd ed, Boston, Little Brown and Co, 1923, Vol 1, p. 584. quoting again Maitland, P, “Church, State and Decretals” in Roman Catholic law in the Church of England, Methuen & Co 1898, Reprinted in New York, The Lawbook Exchange Ltd, 1992, pp. 51, 74. 116 Holdsworth, idem. Holdsworth observes that as “the common law courts gradually … began to be staffed by common lawyers who had made their career at the bar … the professional jealousy of the common lawyers led them to restrict the jurisdiction of the ecclesiastical courts whenever it was possible to restrict it.” 117 See chapter two, note 45 and supporting text. 118 Helmholz, Canon Law and the Law of England, London and Ronceverte, Hambledon Press, 1987, p. 76

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as secular justices, that service underscores unavoidable respect for clerical practice in the royal courts. What difference did the English Reformation make to the practical protection which canon law afforded to sealed religious confessions? That question will be answered in two parts. First, by consideration of the mechanical steps that Henry VIII took to reform and control the church. And secondly, by reviewing the status and content of the canon law of the Anglican Church that resulted, and its arguably even enhanced status as a part of the law of England. Effect of the English Reformation on Pre-Existing Catholic Canon Law As the sixteenth century opened throughout Europe, “centralised territorial states were taking the place of the previous loose … feudal monarchies”.119 Henry VIII and Cardinal Wolsey both wanted to control the clergy and reform the admitted corruption in the church – “particularly the abuses of the ecclesiastical courts [which] were exciting extreme unpopularity”.120 Initially, Protestantism did not even feature in their minds as a method to achieve such reform. Indeed, if the Pope had agreed to Henry’s wish for a divorce, there would likely have been no break with Rome. But the unalterable Roman attitude towards divorce made a separation from the orthodox Western church inevitable.121 Plucknett says that the English Reformation fitted the philosophical theme of the times and Henry VIII’s personal need for a divorce was merely a symptom of a universal questioning of “religion … as the basis for civil government”.122 Not only did scholarly re-examination of the Bible’s New Testament lead to a “denial of the validity of [the Catholic] theological development [of] … custom”, but the whole “doctrinal basis of Catholicism was questioned”.123 The people [were] brought into the equation as it [was] perceived “that Kings [do not] exist … for the convenience of their subjects (as in the Middle Ages), [but] both King and people work … together for the glory of God”.124 A whole new theory of state was emerging and as Berman has said, the church victory in the Investiture struggle centuries earlier had provided an unlikely conceptual

119

Holdsworth, op cit, Vol 1, p. 588. Idem. 121 Marius, R, Thomas More, A Biography, Cambridge Massachusetts and London England, Harvard University Press, 1984, p. 385. 122 Plucknett, TFT, A Concise History of the Common Law, 5th ed, London, Butterworths, 1956, p. 41. 123 Idem. 124 Ibid, pp. 41–42. 120

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basis upon which the church and the state could be separated.125 Indeed, the principle underlying Bernard of Clairvaux’s old justification for church influence in temporal matters – that the church wielded two swords, one spiritual and the other temporal126 – could be and, in England, was conceptually reversed so that the King and not the unpopular Pope, wielded both swords. Thus even before the separation with Rome was an accomplished fact, the preambles to Henry VIII’s statutes began to manifest his growing assertion of authority over church matters. He began by legislating against abuses within the church, but when he could not get his divorce, he began chopping away at the authority of Rome in domestic ecclesiastical matters. Holdsworth notes that these changed “relations between Church and State – the theory of Royal Supremacy”127 – were the result of Henry VIII’s collaborative work with “the Reformation Parliament which sat from 1529–1536”.128 The first Acts of this Parliament, carried on in spite of the opposition of the clergy, were directed against certain abuses in the church and its courts [21 Henry VIII, c.5 dealt with Probate; 21 Henry VIII, c.6 dealt with Mortuaries and 21 Henry VIII, c.13 dealt with Pluralities]; and the clergy were compelled in 1531 to recognize the Royal Supremacy ‘so far as the law of Christ allows’. In 1532 it was so clear, from the unsatisfactory progress of the divorce, that there would be legislation aimed more directly at Rome, that Warham, the Archbishop of Canterbury, drew up a formal protest against all statutes to be passed in the ensuing session, which should prejudice the ecclesiastical or papal power. Parliament passed an Act against the payment of Annates [23 Henry VIII, c.20]; but the Act was respectful to ‘our Holy Father the Pope’, who was still allowed to charge certain fees for the consecration of bishops; and the King was given a discretion as to its enforcement.129

The Statute of Appeals,130 which cut off appeals to Rome, followed in 1533. Later statutes of Henry’s reign further amplified and defined the supremacy which he claimed.131 The Act of Supremacy (1534)132 recognised the King as the head of the Church of England;133 “Annates and all other payments to Rome 125 Berman says that it was the Papal Revolution which began the process of “disembedd [ing law]…from the social matrix of which it was part” (op cit, p. 50). 126 Though this idea undoubtedly had its roots in St Augustine’s (345–430AD) largely theological concept of the two cities, one earthly and the other heavenly, with “the true Christian” (Berman, op cit, p. 110) living in both, Brian Tierney sources the political development of a separation to Pope Gregory VII in his March 1075 Dictatus Papae (No 26), “which contained the first explicit claim that a Pope could depose an emperor” (Tierney, B, The Crisis of Church and State 1050–1300, Prentice-Hall Inc, Englewood Cliffs, NJ, 1964, p. 46), though the “two swords” phrase was coined only later by Bernard of Clairvaux (1090–1153) (Tierney, op cit, p 88). 127 Holdsworth, op cit, Vol 1, p. 588. 128 Ibid, p. 589. 129 Idem. 130 24 Henry VIII, c.12. 131 Holdsworth, op cit, Vol 1, p. 591. 132 26 Henry VIII, c.1. 133 Holdsworth, op cit, Vol 1, p. 591.

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were cut off ”134 by the statute 25 Henry VIII, c.20 (1534); the Act for the Submission of the Clergy (1535)135 forbade the enactment of new church canon law “except in convocations summoned by the King’s writ”;136 and the Act of Six Articles (1539)137 reaffirmed Roman Catholic doctrine as the doctrine of the by now separate Church of England. On one historical view, Henry VIII, was doing nothing that had not been done by English Kings before him. William the Conqueror had appointed his own Archbishop of Canterbury138 and Henry II had asserted royal or secular jurisdiction over criminous clerks.139 But Henry VIII was doing more than resurrect the spirit of the old investiture contest. Holdsworth says that Henry VIII “[m]anufacture[d] history upon an unprecedented scale”140 as he postulated temporal supremacy over the church. His genius was “the Tudor genius for creating a modern institution with a medieval form”141 at a time when his agenda resonated with the nationalism of the age. Marius says that “[t]he Act in Restraint of Appeals constituted a revolution”142 because it cleared the way “for an Archbishop of Canterbury with the proper credentials to declare the marriage between Catherine and Henry null and void and to leave the mournful queen no appeal to higher earthly authority”.143 And that is, of course, exactly what Henry VIII’s newly nominated Archbishop of Canterbury, Thomas Cranmer, did as soon as “the official papal documents certifying Rome’s approval of [his] … elevation arrived in England”.144

134

Ibid, p. 592. 25 Henry VIII, c.19. 136 Holdsworth, op cit, Vol 1, p. 592. 137 31 Henry VIII, c.14. 138 Berman, op cit, p. 437; Plucknett, op cit, p11. 139 “Benefit of clergy” was discussed supra in chapter two, pp. 44–48. It was Archbishop Thomas A’Becket’s resistance to Henry II’s ‘Constitutions of Clarendon’ (1164) and in particular Henry’s assertion of royal jurisdiction over clergy accused of crime, that lead to the Archbishop’s murder by the King’s knights in 1170. The Constitutions of Clarendon asserted secular authority in what was considered ecclesiastical jurisdiction in a number of other ways including: that all disputes about church offices were to be decided in the King’s court (article 1); that clergy could not depart the kingdom without the King’s permission (article 4); specifying procedural safeguards for laymen fronting ecclesiastical courts (article 6); that the King’s officers and tenants-in-chief could not be excommunicated without his permission (article 7); that appeals lay from the Archbishop’s court to the King’s court (article 8); dictating royal jurisdiction in the decision of what land belonged to the church (article 9); that the election of bishops and other beneficed clergy was to occur in the King’s chapel – though this was merely a restatement of the 1107 Concordat at Bec (article 12); royal jurisdiction over “pleas of debt under pledge of faith” (article 15) and the prerequisite consent of the lord to the priesthood ordination of the sons of villeins who were born on his land (article 16) – see Berman, op cit, pp. 256–257. 140 Holdsworth, op cit, Vol 1, p. 591. 141 Idem. 142 Marius, R, Thomas More, A Biography, Cambridge Massachusetts and London England, Harvard University Press, 1984, p. 433. 143 Idem. 144 Idem. 135

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Baker says that the 1533 Statute of Appeals145 “severed [the Church of England] from Rome [from January 1534] and appeals to the pope were forbidden”,146 and though Marius maintains that Henry VIII would still have accepted the pope’s jurisdiction if he had thereafter ruled in favour of the divorce, he agrees with Baker that in practice “the act ended the papal jurisdiction in England”.147 Both Marius and Holdsworth find the Act’s preamble revelatory of Henry VIII’s new theory of church and state. For Marius, “[t]he ecclesiastical theory behind the act was that the church was inspired in the whole body by the Holy Spirit and that the pope was unnecessary to the unity of Catholic doctrine”.148 For Holdsworth, the newness of the theory was at its starkest when compared with Bracton, who had written in the thirteenth century: Among men there are differences in status because some men are pre-eminent and preferred and rule over others. Our lord the Pope, for instance, is preeminent in matters spiritual which relate to the priesthood, and under him are archbishops, bishops and other inferior prelates. Also in matters temporal there are emperors, Kings and rulers in matters relating to the Kingdom, and under them dukes, counts, barons magnates or vavassors, and Knights.149

The preamble to the 1533 Statute of Appeals150 which Holdsworth says manifests Henry VIII’s personal sketching,151 in contrast joins the temporal and spiritual jurisdictions under the King: By divers sundry old authentic histories and chronicles, it is manifestly declared and expressed that this realm of England is an empire … governed by one supreme head and King … with plenary whole and entire power … without restraint or provocation to any foreign princes or potentates of the world. The body spiritual … (now being usually called the English Church) which … is sufficient and meet of itself, without the intermeddling of an exterior person … to declare and determine all such doubts and to administer all such offices and duties as to their rooms doth appertain … the King his most noble progenitors and the nobility and commons of this said realm … made sundry … laws … for the entire and sure conservation of the prerogatives, liberties and pre-eminences of the said imperial crown of this realm, and of the jurisdictions Spiritual and Temporal of the same, to keep it from the annoyance as well of the see of Rome as from the authority of other foreign potentates.152

145

24 Henry VIII, c 12. Baker, JH, An Introduction to England Legal History, 3rd ed, London, Boston, Dublin, Edinburgh, Hato Rey, Kuala Lumpur, Singapore, Sydney, Toronto, Wellington, Butterworths, 1990, p. 151. 147 Marius, op cit, p. 432. 148 Idem. 149 Holdsworth, op cit, Vol 1, p. 590. 150 24 Henry VIII, c 12. 151 Holdsworth, op cit, Vol 1, p. 589. 152 24 Henry VIII, c 12, preamble. 146

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However, Henry VIII did not establish this new theory of church and state all by himself. The “lawyers, theologians and ecclesiastical historians soon began to amplify and illustrate this historical argument … to prove that it rested upon a solid basis of historic truth”.153 Lawyers and ecclesiastics “have had and still have professional interest in maintaining this thesis”154 to keep their statutes, cases and canon law intact.155 Indeed, Holdsworth maintains that it was not until Maitland in the nineteenth century, a dissenter as he said, from both the English and Roman churches,156 that “the historical worthlessness of Henry’s theory was demonstrated”.157 Henry VIII’s later statutes “amplified and defined the supremacy which [Henry VIII] claimed”,158 the Act of Supremacy159 being the most obvious example. Plucknett’s summary of Henry VIII’s revolutionary statutes is: In one statute160 [Parliament] declared that the supreme head of the Church was not the Pope, but Henry; in another it confiscated enormous quantities of property which had been held by the Church for centuries undisputed; in another even so sacred a thing as Christian doctrine was restated by Parliament in the Statute of Six Articles; soon it was to establish a prayer-book to replace the ageold formularies hitherto in use.161

Again, the lack of significant or sufficiently powerful opposition manifested the nationalism of this age. Such was Henry VIII’s capture of public sentiment that “the bishops and archbishops took out commissions from him to exercise their ordinary powers and authorities”.162 But it was not only nationalism that empowered Henry VIII. He yoked clerical self-interest to patriotism when he presented the English church with a status quo autonomy. In the Act for Submission of Clergy,163 he affirmed that there would be “no new canons … except in convocation summoned by the King’s writ”,164 but he made no changes to the canon law as the English church knew and practised it. Even the Act of Six Articles165 “reaffirmed most of the leading doctrines of the Roman 153

Holdsworth, op cit, Vol 1, p. 591. Idem. 155 Idem. 156 Holdsworth, idem. He calls Maitland “the greatest historian of this century” and says that Maitland “was both a consummate lawyer and a dissenter from the Anglican as well as from other churches.” 157 Holdsworth, idem. Berman in contrast, implies that Henry VIII’s ‘new theory of church and state’ had very strong historical antecedents since the Holy Roman Emperor held political supremacy at least in Europe, before Pope Gregory VII’s ‘revolution’ in the eleventh century (see discussion of England’s Catholic history after the Norman conquest, supra, pp. 68–70). 158 Idem. 159 26 Henry VIII, c.1. 160 Idem. 161 Plucknett, op cit, p. 43. 162 Holdsworth, op cit, Vol 1, p. 592. 163 25 Henry VIII, c 19. 164 Holdsworth, op cit, Vol 1, p. 592. 165 31 Henry VIII, c.14. 154

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Catholic Church; and the existing organisation of the ecclesiastical courts was maintained”,166 including the canon law surrounding the seal of confession. For though the Act for Submission of Clergy167 anticipated the creation of a committee of thirty-two to review existing canon law, and even though Elizabeth I’s Archbishop Cranmer and Peter Martyr completed the revision,168 “it never obtained legislative sanction”169 – and no change was made to the canon law surrounding religious confession until the first year of the reign of James I.170 Though there is difference between the historians who maintain Henry VIII simply resurrected the spirit of the Investiture struggle and those who say that he effected a completely new theory of church and state, Henry VIII did not change the doctrine, canon law or practice which surrounded Roman Catholic religious confession with seal. Though Church power had certainly ebbed from its high water mark after Thomas A’Becket’s martyrdom in the twelfth century, and though Protestant ideas denying the need for regular sacramental confession began to seep across the Channel from Europe before the first Anglican canons were promulgated, there was no suggestion that priests were free to disclose confessional communications and secrecy was retained when those canons did come forth. The Seal of Confession in Anglican Canon Law The purpose of this section is to briefly set out the Anglican canon law relevant to religious confession in 1603/1604 and to confirm that almost alone in the total body of that law, the canon regarding the secrecy of confession has remained intact ever since. The significance of this consistent canon law position on religious confession will then be placed in the evolving secular legal context to identify the respect due this canon in English courts since James I took the English throne in 1603. The proviso to the 113th canon of the Anglican Church enacted in 1603/1604 relevant to this consideration of religious confession privilege reads: Provided alwayes, that if any man confesse his secret and hidden sinnes to the Minister for the unburthening of his conscience, and to receive spirituall consolation and ease of minde from him, We doe not any way bind the sayd Minister by this our Constitution, but doe straightly charge and admonish him, that he do

166

Holdsworth, op cit, Vol 1, p. 593. 25 Henry VIII, c 19. Holdsworth, op cit, Vol 1, p. 594. 169 Idem. 170 Elizabeth I died and James I succeeded to the throne on 24 March 1603. The original canons of the Anglican Church are variously described by the commentators as having been issued in 1603 and 1604. 167 168

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It is clear that this canon represents a dilution of the standard of secrecy imposed by the 21st canon of the Fourth Lateran Council172 and technically operative even in the Anglican Church until these new 1603/1604 canons were promulgated. Effect of New Conditional Seal Wording The most striking thing about the change to the Roman Catholic canon concerning the seal of confession in the first Anglican canon is the words – “we doe not any way bind the sayd Minister by this our Constitution” and the parenthesised exception – “except they bee such crimes as by the Lawes of this Realme, his own life may be called into question”. They represent a clear retreat from the unconditional requirement operative from 1215 – 1603 under the 21st canon of the Fourth Lateran Council. Just what these two conditions mean in practice, has never been authoritatively determined by Anglican canonical authorities. Norman Doe’s view is that this “law of the Church of England merely recommends that a minister should not disclose information received in the exercise of the ministry of absolution”,173 but his interpretation of the canon may be regarded as the liberal view premised upon the belief that confession itself fell into disuse after Henry VIII’s Reformation.174 Bursell is more conservative in his observation that “auricular confession was specifically enjoined in the Edwardian prayer books of both 1549 and 1552, each of which received the sanction of Parliament”.175 And though the Anglican canon law authority Blunt recognised disuse of confession compared to the mandatory annual Roman Catholic practice after the Reformation, he observed that it was

171 Constitutions and canons ecclesiasticall/treated upon by the Archbishops of Canterbury and York, London, printed by Robert Barker and by the assigns of John Bull, 1640. 172 The text of the 21st canon promulgated by the Fourth Lateran Council in 1215 is set out in full supra, p. 65. 173 Doe, N, The Legal Framework of the Church of England, Oxford, Clarendon Press, 1996, p 353. 174 The debate between Anglican authorities about the nature of the secrecy obligation of a member of the clergy under canon 103 is canvassed in the discussion that follows (infra, pp 115–120). But see also Helmholz, RH, Roman Canon Law in Reformation England, Cambridge, 1990, pp. 113–114; Rodes, RE, Jr, Law and Modernization in the Church of England, Notre Dame and London, University of Notre Dame Press, 1991, pp. 114–115; Doe, N, Canon Law in the Anglican Communion, Oxford, Clarendon Press, 1998, p. 291. 175 Bursell, Judge RDH, “The Seal of the Confessional”, Ecclesiastical Law Journal 1 (7) (1990) 84, 87.

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“distinct[ly] recogni[sed] … in the Prayer Book [1549], the canons of 1603, and the Homilies [and] … has been continuously in use by wise, orthodox, and holy Anglican clergy and laity [ever since] and there is no law whatever against it”.176 Though Doe says the 1938 Doctrine Commission interpreted the “not any way bynd” words to mean “that the ‘rule’ binds only in conscience”,177 the Commission in fact, and rather more largely, said: The confession is heard under the ‘seal’ of absolute secrecy. This rule is necessary in order that freedom of confession may be secured. It is essential to the due discharge of the confessor’s office that this rule should be held to be so binding on the priest’s conscience that he cannot consider himself released therefrom by the authority of the civil or other power.178

Leeder contributes that although the meaning of the “exception” words in the proviso have likewise never been clearly spelled out, “[t]reason would seem to be the only candidate”.179 Non-Compulsory Protestant Confession The debate noted above as to whether and how Anglican confessional practice changed after the English Reformation is licensed by the conditional nature of the proviso’s language. Gone is any indication that confession is an obligatory annual sacramental observance incumbent upon every member of the body of Christ, and instead there is demonstrably Protestant language intoning that the purpose of confession is the unburdening of conscience. Luther’s primary attack on Roman Catholic confessional practice had denied the need for obligatory priestly intervention between sinner and God. Hence he and other Protestants came to downgrade confession’s sacramental character, though without diluting the priestly obligation of secrecy when confessions were heard.180 Clearly the doctrines of Protestantism made their influence felt in England after Henry VIII’s break with Rome saw him embrace some in selfjustification.181 Holdsworth says that “the church was given a more definitely Protestant character”182 in Elizabethan times as she sought to accommodate popular doctrines from Europe. 176 Blunt, JH, The Book of Church Law, 10th ed, London, New York and Bombay, Longmans Green & Co, 1905, p. 173. 177 Doe, N, The Legal Framework of the Church of England, Oxford, Clarendon Press, 1996, p 354. 178 Quoted by Doe (op cit) from Doctrine of the Church of England, London, 1938, p. 192. 179 Leeder, L, Ecclesiastical Law Handbook, London, Sweet & Maxwell, 1997, p. 355. 180 See for example Marius, R, op cit, p. 271. 181 Marius, R, op cit, pp. 385–394, noting Henry VIII “consort[ing] with even the most unsavory heretics if they offered him support” (ibid, p. 394). 182 Holdsworth, op cit, Vol 1, p. 594.

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However, even though the Catholic formality was certainly diluted from Anglican confessional practice after the Reformation, its traditional secrecy was not mitigated at all and arguably attracted the imprimatur of more formal legal sanction. Bursell’s183 observation above184 that Parliament had at least obliquely endorsed confession and its canonical secrecy when it “enjoined [it] in Edwardian prayer books”185 is not an assertion he leaves to stand on its own. He notes England-specific canon law and parliamentary approval with “royal assent and licence”186 of the practice on several occasions down to 1662. He cites the following eight authorities. First, the 21st canon of the Fourth Lateran Council (1215) with inviolable seal has been reiternated by synodal statutes subsequent from Salisbury, Durham, Winchester, Worcester, Chichester, Ely, Wells, London, Exeter and Canterbury, leaving beyond doubt “that the seal of the confessional was a duty imposed by the pre-Reformation canon law of England”.187 Secondly, section 7 of Henry VIII’s Act for the Submission of Clergy188 in 1533 provided that all existing canon and synodal law was preserved until the King confirmed any proposed changes, unless such law was “contrary or repugnant to the laws, statutes and customs of the realm, or to the damage or hurt of the King’s prerogative royal”.189 Thirdly, the 1539 Act for Abolishing Diversity of Opinions in certain Articles concerning Christian religion confirmed with the King’s express consent “[t]hat auricular Confession is expedient and necessary to be retained and confirmed, and used and frequented in the Church of God”.190 Fourthly, “[a]lthough [that] statute was repealed in 1547,191 auricular confession was specifically enjoined in the Edwardian prayer books … each of which received the sanction of Parliament”.192 Fifthly, the proviso to the 113th 1603/1604 canon received “royal assent and licence”193 as part of the new canonical package before same was promulgated “demonstrat[ing] once again that the seal of confessional was not regarded at that time as “contrariant or repugnant to’ either the royal

183 Judge Rupert DH Bursell, QC, Chancellor of the Diocese of Durham, Ll.B(Exon), MA, D.Phil.(Oxon). 184 Supra, p. 78. 185 Bursell, Judge RDH, “The Seal of the Confessional”, Ecclesiastical Law Journal 1(7) (1990), 84, 87. 186 Ibid, p. 88. 187 Ibid, p. 84. 188 25 Henry VIII, c 19. 189 Bursell, op cit, pp. 86–87. 190 31 Henry VIII, c 14, ss 1, 2 & 3 as quoted by Bursell, op cit, p. 87. 191 Bursell, op cit, p. 87 citing 1 Edw VI c 12, s 2. 192 Bursell, idem, citing the 2nd edition of Phillimore’s Ecclesiastical Law (pp 541–542) and the statutes 2 & 3 Edw VI c1 and 5 & 6 Edw VI c 1 giving parliamentary sanction to these prayer books. Though Bursell says the second of these statutes endorsing the prayer books was repealed by Edward’s successor Queen Mary (1 Mar. sess 2 c 2), he notes it was revived under Elizabeth (1 Eliz I c 2) and has not since been repealed. 193 Ibid, p. 88.

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prerogative, the common law or the statute law”.194 Sixthly, that proviso has never been altered, though a proposal which would have strengthened it further and removed the “treason” exception in 1969 lapsed in favour of the status quo.195 Seventhly, the 1662 Book of Common Prayer which was given statutory force by the Act of Uniformity in 1662 after Cromwell’s Commonwealth, reiterated the appropriate practice of auricular confession.196 And finally, “the ecclesiastical law is part of the general law of the land and a secular court is as much under a duty to enforce it as an ecclesiastical court”.197 This final point is the point which must be tested. What Authority Does Canon Law Have in Post-Reformation Secular Courts? Bursell cites only seventeenth century authority for his eighth proposition above198 and does recognise but disagrees with Nokes’ opposing view that “it is doubtful whether a clergyman in the twentieth century is … likely to be censured by an ecclesiastical court for [breach of confessional secrecy] … in the absence of any modern precedent of ecclesiastical discipline for [such] … breach”.199 Blackstone200 and Holdsworth201 have cited more recent authority for the same proposition – but what does it mean? Is Bursell’s conclusion that “[b]oth [ecclesiastical and secular] courts must therefore enforce that clerical duty and uphold any refusal by an Anglican clergyman to answer questions in breach of the seal of the confessional”202 accurate? What about non-Anglican clergy? Or is Nokes correct that a twentieth century secular court is no more likely to enforce ecclesiastical discipline against an Anglican priest than that same court would be to censure a layman for sexual immorality? 203

194

Idem, citing the actual old English words of the Act for Submission of Clergy (25 Henry VIII, c.19). 195 Ibid, p. 95. The text of the original 113th canon of the Church of England promulgated in 1603/4 has never been altered. The most recent proposal that it be amended was considered in 1969 but was not advanced and the original form of the canon’s language thus remains to the present day. 196 Ibid, pp. 99, 105. 197 Ibid, p. 108. 198 Ibid, p. 108. 199 Nokes, GD, “Professional Privilege” [1950] 66 LQR 88, 101. 200 Blackstone, Sir W, Commentaries on the Laws of England, New York and London, Garland Publishing Inc, 1978, Vol 4, p. 60. 201 Holdsworth, op cit, Vol 8, pp. 402–420, citing variously Taylor’s case (1676) 1 Vent. 293; 86 ER 789; R v Woolston (1729) 2 Str 834; 93 ER 881; Briggs v Hartley (1849) 19 LJ Ch 416–417; Shore v Wilson (1842) 9 Cl. and Fin., pp. 524–525; 8 ER 450 and MacKonochie v Lord Penzance (1881) 6 AC 424, 446. 202 Bursell, op cit, p. 109. 203 Nokes, op cit, p. 101.

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Norman Doe is doubtful of Bursell’s conclusion “that a cleric would be in grave danger of censure [even] by the ecclesiastical courts in the event of violating the seal”.204 Professor Elliott205 (also in the Ecclesiastical Law Journal) and Lynne Leeder are both of the view “that the general attitude of English law”206 and “the weight of opinion”207 are sufficiently against the confessional privilege that it would not stand against an actual judicial inquiry.208 But the three scholars, and others,209 all concede that the matter has never been decided.210 Bursell was, however, making finer points than most of the other commentators, who limited themselves to generalisations about the state of religious confession privilege at common law – a question which is the detailed subject of this book in chapters four and five infra. Bursell’s finer point was that the clergy of the Anglican Church are under “a duty in certain circumstances … to hear a confession”211 and a concomitant and substantive duty not to disclose such communications under the 1603 canons.212 He adds that that obligation was reaffirmed in both 1959 and 1969, when the 1603 canon upholding the confessional seal was preserved intact.213 While Bursell214 agrees with Doe215 and Rodes216 that habitual or compulsory confessions are not part of the doctrine or practice of the Anglican Church, they agree with him that voluntary confession is still acceptable and practised and that the obligation of secrecy remains. All that is in issue between them is whether even ecclesiastical courts will protect the priest in his obligation of secrecy in the late twentieth and early twenty-first centuries. Bursell as Chancellor of the Diocese of

204 Doe, N, The Legal Framework of the Church of England, Oxford, Clarendon Press, 1996, p 354. 205 Emeritus Professor of Law from the University of Newcastle upon Tyne. 206 Elliott, DW, “An Evidential Privilege for Priest-Penitent Communications”, 16 Ecclesiastical Law Journal (1995) 272. 207 Leeder, L, Ecclesiastical Law Handbook, London, Sweet & Maxwell, 1997, p. 555. 208 In his letter to Gladstone about religious confession privilege, former Chief Justice Lord Coleridge (1880–1894), who expressed his personal belief in the existence of an enduring religious confession privilege at common law after the Reformation though it “had never been decided”, also doubted that “the English Judges” would have upheld it in 1865 (Coleridge, EH, Life and Correspondence of John Duke Lord Coleridge Lord Chief Justice of England, London, William Heinemann, 1904, Vol 2, p. 365). 209 For example, McNicol, SB, Law of Privilege, Australia, Law Book Co, 1992, p. 324, where she writes, “At common law it is generally accepted that there is no privilege in existence which would protect communications between cleric and communicant … [t]here is, however, a paucity of judicial authority to support the claim”. 210 Bursell says simply that such cases as have raised the question of the admissibility of sealed confessions, have been “inconclusive” (Bursell, op cit, p. 109). 211 Bursell, op cit, p. 104. 212 Ibid, p. 105. 213 Ibid, p. 95. 214 Ibid, pp. 101–4. 215 Doe, N, Canon Law in the Anglican Communion, Oxford, Clarendon Press, 1998, p. 291. 216 Rodes, RE, Jr, Law and Modernization in the Church of England, Notre Dame and London, The University of Notre Dame Press, 1991, p. 254.

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Durham and both a Judge and Queen’s Counsel when he wrote in 1991 says they will. Doe (lecturer in law at the University College of Wales at Cardiff in 1996) and Nokes (appointed Professor of Law at the University of London after he wrote his Law Quarterly Review article in 1950) doubt they would. In the context of this book’s quest for the law in the secular courts, that question is moot. But Bursell consequentially opines: The clergyman’s claim [of privilege from compulsion to disclose a confession] is not based on a privilege against incrimination, although it is no doubt an aspect that he may also pray in aid. Furthermore, just as there is a very real danger that a clergyman will be prosecuted and censured for sexual immorality [despite Nokes’ doubt of any such possibility], there is grave danger that he will be proceeded against for breaching the seal of the confessional. No doubt a situation in which a clergyman was compelled to answer would be considered both by the diocesan bishop in exercising his discretion and by the Chancellor when considering sentence; nevertheless, the ecclesiastical law is part of the general law of the land and a secular court is as much under a duty to enforce it as an ecclesiastical court. Thus no breach should be compelled by a secular court and the absence of any modern precedent such as Nokes suggests is irrelevant.217

It seems to this writer that even in England where the Anglican Church remains the established church of the state, a contemporary secular court would leave an underlying issue of clerical indiscipline to the ecclesiastical jurisdiction, however strongly a conservative church advocate might point up the technicality that secular courts retain theoretical ecclesiastical jurisdiction. However, Bursell’s recitation of modern English statutory recognition of judicial discretion “to exclude evidence … whether by preventing questions from being put or otherwise”218 is of much greater practical significance in the hands of even a secular judge, since it provides an opportunity to remove friction between church and state at what McNicol has observed is a potential flashpoint.219 As will be seen in chapter five, the writer believes that this 1984 English statutory recognition of a judicial discretion to exclude evidence represents the codification of a common law privilege which had grown up and been recognised to favour confidential religious communications generally, rather than only the narrower class of religious confessions. While Bursell’s analysis of the position of a Roman Catholic priest is less clear220 than the position of the Anglican clergy who have the backdrop of “a legal duty imposed by substantive law”,221 it is likely even in England where the Human Rights Act incorporating “a number of the articles of the European

217

Bursell, op cit, pp. 107–8. Section 82(3) of the Police and Criminal Evidence Act, 1984 as cited in Bursell, op cit, p 109. 219 McNicol, S, Law of Privilege, Australia, Butterworths, 1992, pp. 330–331, 337. 220 Bursell, op cit, p. 108. 221 Idem. 218

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Convention on Human Rights into United Kingdom law”222 was passed in 1998, that the secular courts would exercise their 1984 discretion to exclude evidence even-handedly regardless of what faith a clergyman represented.223 That no such cases have come before the courts in England in recent memory bears out a practical point made often in commentary. Bursell observes: It is not surprising that there are only infrequent references to the seal of the confessional in the law reports: the prosecution will only be interested if the defendant has admitted his guilt; if the defendant has admitted guilt to a priest, he is most unlikely to broadcast the fact and, if he has not, that fact would not be admissible in evidence; the priest, if he has heard an auricular confession, is unlikely to make the fact of a confession known because of the seal of the confessional.224

McNicol observes more simply that most clergy would rather go to gaol than break their sacred vow about confidentiality.225 The reasons underlying these observations are likely to ensure that religious confessions remain confidential in practice. Indeed, anecdotal evidence from the United States confirms that even in jurisdictions where the clerical reporting of child abuse has been legislatively mandated,226 there has not been a significant increase in court cases about clerical privilege, though whether that is because priests do not report anyway, or because child abusers do not confess, is, and is likely to remain, unclear. Richard Nolan’s conclusion quoted on page 67 supra – that there was such a “close connection” between the so-called spiritual and temporal domains of government in Anglo-Saxon England that there can be no doubt that religious confession was privileged from disclosure by the “law of the

222

Butler, AS, “Judicial Review, Human Rights and Democracy”, in Huscroft G & Rishworth P, Litigating Rights, Oxford – Portland Oregon, Hart Publishing, 2002, p. 64. 223 Note however, that in the European Union which includes England, the provisions of the European Convention on Human Rights and Fundamental Freedoms (4 Nov 1950, 213 U.N.T.S. 221) which bind all member states do not mean that all religions or religious observance need be treated in a completely even-handed way since many of the member states have established churches (see Evans, C, Freedom of Religion under the European Convention on Human Rights, Oxford, Oxford University Press, 2001, pp. 19–22). Note also that the interpretation of instruments guaranteeing freedom of religious practice in Australia which has no established church and where the Commonwealth is constitutionally prevented from passing laws which would interfere with freedom of religious practice, is discussed in chapter seven. The nature of religious confession privilege in the United Kingdom is the subject of more detailed consideration in chapter eight. 224 Bursell, op cit, p. 89. 225 McNicol, op cit, pp. 329–330, 336. 226 Mitchell, MH, “Must Clergy Tell? Child Abuse Reporting Requirements versus the Clergy Privilege and Free Exercise of Religion” (1987) 71 Minn. L. Rev. 723, 795, 822; Cassidy, RM, “Sharing Sacred Secrets: Is It (Past) Time for a Dangerous Person Exception to the Clergy Penitent Privilege?” (April 17, 2003), Research Paper No. 13, Boston College Law School Research Paper Series, 1629, 1687–1697. The nature of religious confession privilege in the United States is discussed in more detail in chapter nine.

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land”227 has been seen to be a fair statement of the legal standing of religious confession privilege before the Reformation. But what of his doubt that such privilege survived the official Catholic persecution that followed the English Reformation?228 When his logic (though not his doubt) in favour of the survival of religious confession privilege after the Reformation, is weighed with Bursell’s ‘Anglican view’ just discussed, and Nokes’ more objective doubt of respect for religious confession privilege in English ‘secular’ courts in the 1950s,229 is religious confession privilege any more supportable in a common law world which has become markedly less religious but more egalitarian? The answer is that Nolan’s conclusion about the pre-Reformation standing of religious confession privilege agrees with what Bursell has said in favour of Anglican religious confession privilege after the English Reformation. For since: no statute has been passed which expressly revokes religious confession privilege;230 Anglican canon law still enshrines the secrecy of such confessions as are made to the clergy;231 the Church of England remains the State Church of England by force of law;232 the English courts are still jurisdictionally obliged to apply the ecclesiastical law when it applies in cases coming before them;233 custom still respects established religious practice when it is practiced;234 and there is still no formally decided and authoritative case rebutting the privilege directly once and for all235 – English courts remain technically obliged to respect ecclesiastical law as a part of the law of the land. Historical Debate About Secular Legal Respect for Canon Law There has, however, been some doubt of the view that canon law was always respected in English courts. That view states that English courts never felt themselves obliged to cite or follow foreign authority. And that view resonates both with King Henry VIII’s seeming capture of nationalistic sentiment when he severed the church from Rome and Coke’s obvious reluctance to cite foreign authority for his treason exception to religious confession privilege. Bishop Stubbs’ doubt of canon law authority in even English ecclesiastical courts before the eighteenth century is noted by both Holdsworth and 227

Nolan, RS, “The Seal of Confession” (1913) 13 Catholic Encyclopedia 649. Ibid, p. 653. 229 Nokes, CD, “Professional Privilege” [1950] 66 LQR 88, 101. 230 Nolan, op cit, pp. 649, 652. 231 Ibid, p. 652. 232 Compare similar arguments that Nolan makes in favour of Roman Catholic confession when the Roman Catholic Church was the State Church of England (ibid, p. 650). 233 Bursell, op cit, pp. 107–108 as quoted supra, p. 83. 234 Ibid, pp. 650, 651. 235 Compare Nolan’s argument that “there is not a single reported case, textbook or commentary, during the whole pre-Reformation period which contains any suggestion that the laws of evidence did not respect the seal of confession” (ibid, p. 652). 228

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Helmholz from the Report of the Commissioners into the Constitution and Working of the Ecclesiastical Courts in 1883.236 Those Commissioners “held … that, even before the Restoration, the English Church Courts were free to pursue a path independent of foreign, and particularly papal direction”.237 Stubbs’ view implies that Nolan’s conclusion of a very close connection between the spiritual and temporal domains even in Anglo-Saxon England is too strong. For Stubbs says such a view draws respect for the canon law not only into English ecclesiastical law, but further into the temporal common law as well. But Maitland, Holdsworth and Helmholz have all effectively rebutted the Stubbs’ opinion and implicitly approved the Nolan logic. Holdsworth says that Maitland proved that “the supremacy of the Pope and the binding force of the canon law were fully recognized [in England]”238 in his book on Roman Canon Law in the Church of England.239 In his more recent review of the StubbsMaitland controversy,240 Helmholz concedes for Stubbs that “[n]ot all papal decretals241 were meant to have the force of ‘binding statute law’ in a modern sense”.242 However, he agrees with Maitland that the more important “papal law[s] … were in fact regarded as binding statute law in England”,243 but says that the whole debate was the anachronistic result of reading too much legal positivism into a Middle Ages context where “[l]ocal custom … played a much greater role in the legal practice of the ecclesiastical courts than modern statute law would allow”.244 Accordingly, Nolan’s expectation that England’s secular courts and hence the common law were unlikely to deny a religious confession privilege when the confession was an essential sacrament of the national church,245 appears well grounded. It also concords with Professor Nokes’246 statement that: There is no doubt that the Roman canon law insisted on the duty of the priest not to divulge the secrets of confession, and that, while the Church here was still in

236 Quoted by both Holdsworth (op cit, Vol 1, p. 582) and Helmholz (Helmholz, RH, Canon Law and the Law of England, London and Ronceverte, The Hambledon Press, 1987, p. 260). See also Stubbs, W, “The History of the Canon Law in England” in Selected Essays in Anglo-American Legal History, Vol 1, New York, The Lawbook Exchange Ltd, 1992 (originally published in Boston by Little Brown and Company in 1907) pp. 248, 263. 237 Helmholz, op cit, p. 260. 238 Holdsworth, op cit, Vol 1, p. 582. 239 Maitland, P, “Church, State and Decretals”, in Roman Canon Law in the Church of England, Methuen & Co 1898, Reprinted in New York, The Lawbook Exchange Ltd, 1992, pp. 51, 84. 240 Helmholz, op cit, pp. 260–261. 241 Papal decretals were “[p]apal decisions defining principles of canon law” (Helmholz, op cit, p. 249). 242 Ibid, p. 261. 243 Idem. 244 Idem. 245 Nolan, op cit, p. 652. 246 Emeritus Professor of Law at the University of London, though not when he wrote the article cited in note 229.

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communion with Rome, English provincial councils, clerics and canonists reiterated that duty247

though Nokes does not enter into the controversial Stubbs-Maitland question as to whether that respect for canon law flowed through the ecclesiastical law and into the common law. Conclusion Sir Edward Coke confirmed except in cases of treason, that religious confessions were privileged from disclosure in English courts in the seventeenth century. The canon law and practice of the English church was so entrenched in English custom that it became a part of the common law as that common law evolved. Since religious confession was a sacrament of the established church at least until the first Anglican canons were promulgated in 1603/1604, there can be no doubt that recipients of religious confessions were privileged from any obligation to disclose them – to anyone. Even in Garnet’s case in 1606, when Catholic persecution was raging after the discovery of the Gunpowder Plot, Coke as Attorney-General and prosecutor, and the Earls of Salisbury and Northampton must be interpreted as recognising that privilege attached to sacramental religious confessions. Coke subsequently reaffirmed that view when he published his Second Part of the Institutes more than twenty years later. Though there was no discrete body of evidence law in existence before it evolved following the advent of defence representation in criminal trials, the ancient “priviledge of confession” was deeply imbedded in the common law – and unlike its sister privilege, ‘benefit of clergy’, has never been statutorily abrogated. I will now review the evolution of the common law regarding religious confession privilege since Garnet’s case and the publication of Coke’s Second Part of the Institutes.

247

Nokes, op cit, p. 94.

CHAPTER FOUR

RELIGIOUS CONFESSION PRIVILEGE AT COMMON LAW FROM THE SEVENTEENTH TO THE TWENTIETH CENTURY Introduction Sir Edward Coke’s recognition of religious confession privilege at common law with a treason exception1 has never been cited in a reported English case. Though the common law evolved markedly in the almost two centuries that elapsed before the first evidence law texts began appearing, it is also surprising that WM Best2 was the first to cite Coke’s Second Part of the Institutes in his treatment of religious confession privilege in 1860 – more than two hundred and thirty years later. While the rigour and accuracy of Coke’s scholarship has been criticised since, and while the law of evidence became a specialty in those intervening years, it is still surprising that neither his last case as AttorneyGeneral in so celebrated a matter as the prosecution of the last alleged Gunpowder plotter,3 nor his Second Part of the Institutes warranted such mention. Was religious privilege abolished by statute in the meantime? If there were no cases, was there some prerogative edict which directed the extinction of this ‘aberration’ imported into the common law from the old canon law? There is no obvious explanation for the silence – and yet there was a significant volume of judicial comment before the twentieth century dawned. The purpose of this chapter is to review the cases in detail to determine why the early text writers were so fixed in their belief that there was no privilege that ever protected a member of the clergy from evidential compulsion. I start chapter four with a summary of the general evolution of the law of evidence and explain that religious confession privilege existed long before other any other evidential privilege was born. Evidence law and the privileges that were developed to protect some witnesses from being compelled, are identified as the product of a newly independent judiciary regulating the evidence that the jury should properly hear. Religious confession privilege is identified as having predated any of that though it may have provided some conceptual support for the new ideas. The need to categorise the cases about evidential privileges in text books primarily designed as handbooks for barristers, is

1 Coke, Sir E, The Second Part of the Institutes of the Laws of England, New York, Garland Publishing Co, 1979, p. 629. 2 Best, WM, A Treatise on the Principles of Evidence, London, S Sweet, 1849. 3 Garnet’s case (1606) 2 Howell’s State Trials 217.

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identified as the reason why religious confession privilege and legal professional privilege were treated together and why religious confession privilege was treated as an afterthought, a qualification and even a mere sub-category. Then I analyse the cases themselves. First, I discuss the legal professional privilege cases which are cited in connection with religious confession privilege. Secondly, I identify why cases about irregular confessions are not really relevant to deciding whether there was a religious confession privilege or not. Thirdly, I consider whether there have been any clear religious confession privilege cases and conclude that the very few that there are, do not advance an understanding of religious confession privilege very much. Finally, I discuss the variety of extra-judicial comment and response about religious confession privilege which resulted from the much publicised case of R v Constance Kent4 in 1865 but note once again that no authoritative conclusion emerged. Chapter four concludes with a restatement of the opening observation that since there has been no statute to abolish religious confession privilege, and since the cases do not justify that firm conclusion, then religious confession privilege survives at least in theory. Religious Confession Privilege Existed Before There Was a Discrete Law of Evidence In connection with religious confession privilege, in 1876, Sir James Stephen wrote that “the modern Law of Evidence is not so old as the Reformation, but has grown up by the practice of the Courts, and by decisions in the course of the last two centuries.”5 Stone and Wells affirm that though “the rules of evidence relation to documents … are of immemorial antiquity … the rules relating to oral testimony … are little older than the seventeenth century”.6 I have demonstrated in chapters two and three that there was a practical religious confession privilege functioning in England until at least the beginning of the seventeenth century, despite doubt or denials in legal commentary. Since the law relating to religious confession privilege is a part of the law of evidence, and since in practice it is not a documentary privilege, the law relating to religious confession privilege is older than most if not all of the rest of law relating to oral evidence. This insight is important when it is recognised that the other privileges and immunities which form part of what Sir James Stephen called “the modern law of evidence”7 evolved as a part of that new 4 Unreported because Constance Kent ultimately pleaded guilty to the murder with which she was charged. 5 Stephen, JF, A Digest of the Law of Evidence, London, MacMillan and Co, 1876, p172. 6 Stone, J, Evidence, Its History and Policies, Revised by WAN Wells, Sydney, Butterworths, 1991, p. 24. 7 Stephen, op cit, p. 172.

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and discrete body of law. Stone and Wells explain the relative modernity of the law of oral evidence with proof from the evolution of the criminal trial. They observe that it was not necessary to regulate oral testimony when trials were a procedure to ascertain the will of God.8 However, when the jury was transformed into an institution that was required “to give its verdict only on evidence of witnesses duly sworn in the case”,9 it became necessary to standardise the quality of what jurors heard. Similarly, before the English Revolution of the seventeenth century established the supremacy of Parliament, judicial dependence “on the goodwill of the Crown”, particularly in cases of treason, acted as a restraint on the development of “rules for preventing prejudice”, such as the hearsay and similar fact evidence rules.10 The absence of defence counsel for accused persons till 1695 in cases of treason,11 until the late eighteenth century in cases of felony and universally in 1837,12 was another contributor to the late development of evidentiary rules intended to prevent prejudice. Stone and Wells tie the development of “the rule exempting attorneys from the duty to disclose communications made to them in professional confidence”13 and “the rule that no witness will be compelled to answer questions, if the answer may tend to render him liable to criminal prosecution”14 to the appearance of the idea that “witnesses might be compelled to appear”.15 Since it was quickly apparent that the Crown’s power to compel witnesses might become an “instrument of tyranny”, and since particularly after the English Revolution, parliament and the judiciary were acutely conscious of the need to control tyranny, legal professional privilege16

8

Stone and Wells, op cit, p. 23. Idem. 10 Ibid, p. 34. 11 Ibid, p. 35. Milsom dates the availability of defence counsel in treason cases to 1696 (Milsom, SFC, Historical Foundations of the Common Law, London, Butterworths, 1969, p 360). 12 Stone and Wells, op cit, p. 35. Note, however, that Milson dates the availability of defence counsel in cases of felony to 1836 (Milsom, op cit, p. 360). 13 Stone and Wells, op cit, p. 33. 14 Idem. 15 Ibid, p. 32. Stone and Wells explain that witness compulsion was a consequence of the perception of trials as a rational “search to discover truth from those who knew” (idem). The same Crown self-interest that had promoted “the jury mode of trial” (ibid, p. 30) as preferable to older ecclesiastical modes of trial “established the idea that witnesses might be compelled to appear” (idem). Though the transition from the Jury as an Inquest of Neighbours (in the thirteenth century) into what Stone and Wells call the Judicial Jury was complete by the end of the fifteenth century (ibid, pp. 16–23 (20) ), there was further development between 1500 and 1700 before the jury was transformed completely into the modern body that decides case on the basis of evidence “put before them by witnesses called by the parties” (ibid, p. 32). 16 Though Baron Alderson analogised from legal professional privilege to religious confession privilege to justify the privilege he extended to the confession Griffin made to the workhouse chaplain in R v Griffin (1853) 6 Cox Cr Cas 219, it is possible that legal professional privilege originated in an analogy from the privilege extended to priests, since they intercede 9

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and self-incrimination privilege were originated as policy exceptions to the practice of witness compulsion.17 Though the cases that have developed legal professional privilege in particular numerically dwarf those reported in connection with religious confession privilege, it is clear that the two privileges have completely discrete origins. For when “the modern law of evidence”18 began to appear in the seventeenth century, the privileges of the church were established and still respected. Though the Catholic Father, Henry Garnet, had relied on religious confession privilege in vain in 1606 during the furore which followed the Gunpowder Plot,19 canon law sanctions were still recognised and enforceable by secular authorities,20 judges could still be excommunicated if they offended the church,21 and “benefit of clergy” was still an integral part of criminal law practice.22 Indeed, since the ecclesiastical law, including the new Church of England canon law, was respected as a part of the law of the land,23 it is hardly surprising that religious confessions to the king’s clergy were not the subject of testimonial compulsion. It did not matter that no case had raised the subject of religious confession privilege for adjudication.24 This privilege of the clergy was still a contextual given. Why then, was religious confession privilege inaccurately represented in the early evidence texts that began appearing in the

between sinner and God. However, the author can find no trace of this idea in any of the authorities on the evolution of legal professional privilege. 17 Note, however, that Wigmore says that legal professional privilege was already “unquestioned” during the reign of Elizabeth 1 (Wigmore, Evidence in Trials at Common Law, Revised by John T McNaughton, Boston, Little Brown, 1961, Vol 8, p. 542). 18 Stephen, op cit, p. 172. 19 Supra, chapter two, pp. 55–58. 20 Holdsworth observes that even after the Restoration, “[c]hurch and king act[ed] together to make their own standards of political and theological orthodoxy the conditions precedent for full citizenship” (Holdsworth, WS, A History of English Law, 2nd ed, Boston, Little Brown and Co, 1923, Vol 6, p. 197). He then traces the Acts of Parliament which were passed to persecute non-conformists into such orthodoxy (ibid, pp. 197–198). Helmholz notes that “the day [when] the ecclesiastical courts would obediently follow all the dictates of royal court rules still lay in the future” in 1600 – and that despite jurisdictional contests between ecclesiastical and secular courts, the two jurisdictions cooperated far more often than they struggled (Helmholz, RH, Canon Law and the Law of England, London and Ronceverte, The Hambledon Press, 1987, pp. 4–5). 21 Helmholz, op cit, pp. 3, 77–99. 22 Chapter two, pp. 44–48. 23 See supra, chapter three, pp. 81–85. This idea endured in English common law well into the nineteenth century. Thus Holdsworth is able to quote Lord Blackburn in 1881 stating that “[t]he ecclesiastical law of England is not a foreign law. It is part of the general law of England – of the common law – in that wider sense which embraces all the ancient and approved customs of England which form law … that law administered in the courts ecclesiastical, that law consisting of such canons and constitutions ecclesiastical as have been allowed by general consent and custom within the realm, and form … the king’s ecclesiastical law” (Holdsworth, op cit, Vol 1, p. 595, quoting Lord Blackburn from MacKonochie v Penzance (1881) 6 AC 424, 446). 24 Stephen, op cit, p. 171; see also Winckworth, P, The Seal of the Confessional and the Law of Evidence, London, S.P.C.K., 1952, p. 15.

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early nineteenth century? The answer lies in the orientation and analyses of the early evidence text writers. The Practical Purpose of Early Evidence Texts as Handbooks for Barristers For Stone and Wells, “[t]he principal pioneering books on evidence in our modern sense were Peake on Evidence, 1801, Phillips on Evidence, 1814, and Starkie on Evidence, 1824”.25 The reporting of decisions at first instance commencing at the end of the eighteenth century (particularly the Nisi Prius reports of Peake, Espinasse and Campbell26) and the advent of the textbooks analysing and criticising the rules there expressed into a “coherent, purposive system”27 was the ‘spring-tide’ of our law of evidence.28 Most telling given chapter one’s insight that Peake and Starkie had profound influence on Park J who referenced them as he gave judgement in R v Gilham, is Stone and Wells’ summary of the influence of the text writers: To contemporaries like Peake and Phillips, whose reports and textbook played the major roles in the development, it must have seemed that at last the system was receiving its final form in detail as well as in principle. Indeed broadly speaking, they were right. The authorities we cite today for the basic rules and their exceptions usually date between the years 1800 and 1850.29

The text writers were barristers and reporters recording a knowledge of the law of evidence as they had lived and practiced it. Often they called their books digests thus signaling their intent to systematically reduce, classify and summarise the relevant law – and they were very popular. Roscoe’s Nisi Prius, for example, passed through eighteen editions in the course of eighty years.30 The proliferation of the publications and the number of editions, demonstrates the popularity of the product and their degree of legal market penetration.31 Necessarily they dealt most carefully with developing law and religious confession privilege was not a developing area of the law. Perhaps because the clergy kept their confidences or because for a long time it was

25 Stone and Wells, op cit, p. 36. These texts were all referenced as being principal sources of the flawed interpretation of R v Sparkes discussed in chapter one, pp. 16–18, 20–21. Note too that Stone and Wells misspell the name of Phillipps. 26 Idem, quoting Wigmore. 27 Idem. 28 Idem, attributing the term ‘spring-tide’ to Wigmore. 29 Ibid, pp. 36–37. 30 The first edition was published in 1827 (Roscoe, H, A Digest of the Law of Evidence, London, Joseph Butterworth and Son, 1827) and the eighteenth in 1907 (Powell, M, ed, Roscoe’s Nisi Prius, 18th ed, London, Stevens and Sweet and Maxwell, 1907). 31 See the writer’s summary of some of the texts in chapter one, pp. 16–18.

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simply unthinkable to compel a priest to testify about confessional information,32 there was no need to modify the statements about religious confession privilege in the earliest texts. Religious confession privilege cases simply did not come before the courts, and if confessional issues were raised analogically, the obiter dicta comments which followed were categorised in the texts under related headings which seemed logical although generalised. New cases which referred to religious confession privilege for some reason, were simply added to the footnotes without careful analysis. The texts for the most part did not deal with history; they dealt with day to day legal practice and they were produced as aids for practitioners keen to master the generalised rules of the courts in which they would earn their bread. But they also came to have profound precedential influence. Stone and Wells’ conclusion on the development of the law of evidence, is that despite reform “to remedy particular evils in existing law”,33 the law of evidence alone among “all the great bodies of traditional rules which made up the common law in the nineteenth century … is the one which has been the least changed by a century of legislation”.34 As noted in chapter one, the only sure way to learn what the law of religious confession privilege is, is to go back to the original cases where religious confession privilege is concerned and decide whether Peake, Phillipps and Starkie correctly analysed the cases to arrive at their ‘no religious confession privilege’ conclusion since so many later judges and commentators have taken their summary at face value. The error wrought by Peake’s report of R v Sparkes35 despite Lord Kenyon CJ’s doubt of it in Du Barré v Livette36 has already been noted.37 This chapter will now review the cases cited in connection with religious confession privilege to determine whether the treatment they received in commentary and subsequent cases was fair and rational. Before I proceed with that analysis, it is necessary to restate why so much of that analysis arises in cases about legal professional privilege. Categories in Evidence Law Texts The methodical academic treatment of legal subject matter has always required categories. In the law of evidence, ‘privilege’ is a natural subdivision of the case

32 Writing in 1992, Suzanne McNicol opined one good reason why religious confession privilege should be recognised, is to “reduce unnecessary friction between church and state”, a reason she drew from comments attributed to the President of the Australian Law Reform Commission (McNicol, SB, Law of Privilege, Australia, The Law Book Company, 1992, pp. 330, 337 citing A.L.R.C., Report No. 38 (1987), para 212, p. 120). 33 Ibid, p. 37. 34 Idem. 35 Unreported but referred to in Du Barré v Livette (1791) 1 Peake 108; 170 ER 96. 36 Du Barré v Livette (1791) 1 Peake 108: 170 ER 96. 37 Chapter one, pp. 14–16.

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law. Legal professional privilege is by far the largest evidentiary privilege if case volume is the yardstick. It is also the privilege that arises most often in legal practice and the privilege most conceptually familiar to all law practitioners. That familiarity is certainly part of the reason why there are and always have been so many cases about it. Consequently, in every evidence law text, such treatment as there is of religious confession privilege, follows treatment of legal professional privilege. There are other privileges which are also dwarfed by textual treatment of legal professional privilege, but they are not so easily analogous. For in religions that practice confession, the priest like the lawyer, stands between an individual and a higher power. Such an analogical comparison does not exist in the case of the privilege which protects communications between a husband and wife during marriage; the privilege that protects judges and juries from being compelled to disclose material learned while they were acting judicially; the privilege which protects state secrets and those who become privy to them or the privilege which protects matters of which decency forbids disclosure.38 But the comparison has always disfavoured proper consideration of religious confession privilege. For it became simple in such analysis, to group the clergy with other professionals who did not enjoy an evidential privilege and repeat the one sentence denial in a treatment of legal professional privilege considered more current, important and relevant and that often filled several pages with nuanced detail. So it was that in the first edition of Peake’s Compendium of the Law of Evidence,39 he excluded religious confession privilege as follows: This rule of professional secrecy extends only to the case of facts stated to a legal practitioner, for the purpose of enabling him to conduct a cause; and therefore a confession to a clergyman or priest, for the purpose of easing a culprit’s conscience, the statement of a man to his private friend, or of a patient to his physician, are not within the protection of the law. We should certainly think the friend, or the physician, who voluntarily violated the confidence reposed in him, acted dishonourably; but he cannot withhold the fact, if called upon in a Court of Justice.40

The statement had not changed in the fifth edition in 182241 and while Phillipps was faithful to the steadfast omission of clergy from the list of unfortunately

38 These subdivisions come from Matthews, JB, & Spear, GF, A Treatise on the Law of Evidence by the late Judge Pitt Taylor, 11th ed, London, Sweet & Maxwell, 1920, p. 617. 39 London, E & R Brooke & J Rider, 1801. 40 Ibid, p. 128, citing R v Sparkes as reported in Peake’s cases and the Duchess of Kingston’s case (20 State Trials 612). 41 London, J & WT Clarke, 1822, p. 175.

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unprivileged professionals in Wilson v Rastall42 in his first and second editions in 181443 and 1815,44 Starkie’s first edition in 1824 states: The law will not permit any one to withhold from the information of the jury any communication which is important as evidence, however secret and confidential the nature of that communication may have been, although it may have been made to a physician or a surgeon, or even to a divine, in the course of discharging his professional duties; for it has ever been held, that a minister is bound to disclose that which has been revealed to him as a matter of religious confession.45

Three years later when the first edition of Roscoe’s Digest was released, the summary had been compressed to: Counsel, solicitors, and attornies are the only persons who cannot be compelled to reveal communications made to them in confidence, R v Duchess of Kingston 20 How.St. Tr. 612, therefore physicians, surgeons and divines are bound to disclose such communications. Ibid.46

From 1827 onwards, with rare exceptions,47 the commentators were steadfast in their denial that religious confession privilege existed at common law. But the brief quotations provided show the category habit at work. In the first from Peake, legal professional privilege is a professional secrecy privilege. Peake confines it to lawyers by trivialising the priest’s role to that of easing a culprit’s guilty conscience. Such is not the work of a professional entitled to an evidential privilege. Starkie has generalised one degree further. He says that no one

42 Wilson v Rastall (1792) 4 TR 753; 100 ER 1283. Kenyon CJ and Buller J sat together in this case. Unless they were avoiding public disagreement, it is odd that they did not mention the clergy at all in their obiter statements in this case. For Buller J had apparently decided against religious confession privilege in R v Sparkes (c 1790 unreported but referred to in Du Barré v Livette (1791) 1 Peake 108: 170 ER 96) while Kenyon CJ had disagreed with Buller J’s approach when he had referenced the Sparkes decision obiter in Du Barré v Livette. 43 Phillipps, SM, A Treatise on the Law of Evidence, London, J Butterworth, 1814, p. 67. 44 Phillipps, SM, A Treatise on the Law of Evidence, London, J Butterworth, 1815, p. 104, though in this second edition reference, Phillipps cites R v Sparkes (where Buller J denied protection to an irregular religious confession) as his footnoted authority rather than Du Barré v Livette where Kenyon CJ had doubted the wisdom of the finding. In his first edition, a year earlier, Phillipps appears to have preferred Kenyon CJ’s statement as his authority since R v Sparkes is not mentioned in the footnotes. Phillipps may well have concluded during the year between his first and second editions, that since Buller J’s decision was ratio decidendi, it was more authoritative than Kenyon CJ’s later obiter statement notwithstanding the latter’s seniority as Chief Justice. 45 Starkie, T, A Practical Treatise of the Law of Evidence and Digest of Proofs in Criminal Proceedings, London, J & WT Clarke, 1824, Vol 1, p. 105. 46 Roscoe, H, A Digest of the Law of Evidence on the Trial of Actions at Nisi Prius, London, Joseph Butterworth and Son, 1827, p. 72. 47 Taylor references some of the arguments made in favour of extending professional privilege to clergymen but concludes none the less that they are compellable (Taylor, JP, A Treatise on the Law of Evidence, London, A Maxwell & Son, 1848, Vol 1, pp. 618–620). Best is altogether more doubtful about the standard denials of religious confession privilege and demonstrates with summaries that he has read the relevant cases (Best, WM, A Treatise on the Principles of Evidence, London, S Sweet, 1849, pp. 458–463).

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can avoid giving relevant evidence to a court, unless there is an established common law privilege providing an exemption. But he does not consider that there may be a separate exemption in favour of clergy that originates from a different genesis than the exemption established in favour of legal professionals. In one sense, Roscoe’s summary is simply lazy. In another sense, it is simply the best of the three examples of a risk that inheres in that inductive reasoning which is a feature of common law development. That is, that in inductively reasoning from the specific case to the general principle, one is apt to over-generalise if one begins with an inadequate sampling of facts or cases. That, of course, is not to say that inductive reasoning is fatally flawed as a logical system. Rather, it simply underscores the absolute essentiality of reading each and every case available and considering all the material in detail before one starts to write a text book. What then do the cases say? In the light of this explanation of why there are so many legal professional privilege cases tied up in the common law that does exist relevant to religious confession privilege, I begin this treatment by examining the statements about religious confession privilege in cases that are really about legal professional privilege, in three categories: (a) Legal professional privilege cases that contain an obiter statement against the existence of religious confession privilege, (b) Legal professional privilege cases that contain obiter statements that doubt denials of religious confession privilege, and (c) Legal professional privilege cases that are cited in evidence texts about religious confession privilege but which do not even mention religious confession privilege. Religious Confession Privilege in Cases About Legal Professional Privilege By simple definition, the statements about religious confession privilege in cases about legal professional privilege can only be obiter dicta. Accordingly, where there are decided cases about religious confession privilege, the statements about religious confession privilege in those cases will be more authoritative since such statements will be the kernel of the decision making in the case. As will be seen, there is a dearth of such ratio decidendi statements in recorded English common law history. For that reason, it is the opinion of Sir James Stephen in 1876 and Peter Winckworth in 1952 that the existence and nature of religious confession privilege has never been decided in English common law.48 And even Dean Wigmore, who opines that there are at least

48

See note 24 supra.

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two ratio decidendi cases that have been decided against the existence of religious confession privilege, does not identify them in his long footnoted list. This uncharacteristic absence of exactness makes it difficult to work out which cases he considered did decide against religious confession privilege. For while all the cases listed in Wigmore’s footnotes are considered in the analysis that follows, it remains unclear which cases Wigmore considered were decided against the existence of religious confession privilege. The writer therefore finds the Stephen/Winckworth view more accurate. Thus the obiter dicta statements in cases about legal professional privilege must be considered more carefully than would be necessary if there were better common law material available for analysis. Legal Professional Privilege Cases that Contain an Obiter Statement Against the Existence of Religious Confession Privilege In a 1693 decision called simply Anon,49 Holt CJ would not compel an attorney named Saunders to provide evidence about an allegedly corrupt deed of indenture he had drawn between a sheriff and his under sheriff “though [the attorney] was not a counselor”.50 It is evident that the Chief Justice felt pressed to explain why not and his explanation was that even a scrivener had been found not compellable in relation to advice he had given as “counsel” in conveyancing matters. However, it is the qualification that he placed upon this “counsel” principle that has seen this report cited as authority against the existence of religious confession privilege. “[F]or” he added, “he is a counsel to a man, with whom he will advise; if he be instructed and educated in such a way of practice, otherwise of a gentleman, parson, &c”.51 Holt CJ’s point seems to have been that if a scrivener was educated so as to give legal advice and gave legal advice, then he was not compellable as a witness in relation to the matter advised upon. But it is there where the analysis gets difficult. Did the Chief Justice mean then to say only the legally educated could give legal advice and thus not be compellable as witnesses in related matters; did he mean to say that since gentlemen, parsons and others were not legally educated they were not exempt from being compelled as witnesses on the basis that they were legal advisors; or did he mean to say that parsons could never claim an exemption from being compelled as a witness on any basis whatever? The better interpretation of this thin report seems to be that only a legally educated person who had given legal advice in relation to a matter under consideration by a court, could be exempt from compulsion as

49 50 51

Anon (1693) Skin 404; 90 ER 179–180. Idem. Idem.

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witness in that court on the basis of legal professional privilege. There is no sound basis for the extraction of the ‘no religious confession privilege at common law’ principle from this report. Such citation of the case is misleading. There is more justification for the citation of Greenlaw v King,52 Russell v Jackson,53 Anderson v Bank54 and Wheeler v LeMarchant55 as authority for the ‘no religious confession privilege at common law’ principle, for they all include intentional judicial statements intended to deny that there is a religious confession privilege at common law. In Greenlaw v King, the new rector of St Mary’s in Woolwich sought to have an annuity the late Bishop56 had assigned to his son, Mr King, set aside on grounds that two Acts of Parliament established the annuity on a trust connected with the construction of a new rectory house. In his effort to have the annuity set aside, Greenlaw sought to adduce evidence of correspondence between the Bishop and his solicitor, as well as the opinion of counsel given in the matter, which documents answered the Bishop’s concern about the validity of the annuity.57 King countered with the argument that since these documents came into being because of the Bishop’s concern about litigation such as might flow if the annuity was invalid, they could not be produced in any court.58 The court, however, found the documents admissible because the privilege of a solicitor and his client “are not co-extensive”59 and as executor or personal representative, the Defendant King was not the beneficiary of the privilege to which his late father, the Bishop, would have been entitled in this suit.60 Lord Langdale also referenced the relationship of friendship that had existed between the late Bishop and his solicitor and it was in generalising further to point out that mere confidences were not privileged from disclosure in a court of law, he made an obiter dicta statement which included reference to religious confession privilege. He said:

52

Greenlaw v King (1838) 1 Beav 137; 48 ER 890. Russell v Jackson (1851) 9 Hare 387; 68 ER 558. 54 Anderson v Bank of British Columbia (1876) 2 Ch D 644. 55 Wheeler v LeMarchant (1881) 17 Ch D 675. 56 As in Randolph’s case, cited by Coke in his Second Part of the Institutes as authority for the proposition that there is a treason exception to religious confession privilege, it is fair to wonder whether one reason why Greenlaw v King is cited in connection with religious confession privilege is because a member of the clergy was mentioned in the same case where a confession or a privilege was considered. In chapter three it was noted that Randolph, a priest, confessed his complicity in the crime of treason. Sir Edward Coke used the fact that he was also Dowager Queen Joan’s confessor to bolster the appearance of authority for his treason exception to religious confession privilege. In Greenlaw v King, it may have seemed to some commentators that the denial of any privilege by which a member of the clergy might have benefited, lent authority to the idea that there is no religious confession privilege. 57 Greenlaw v King (1838) 1 Beav. 137, 143; 48 ER 890, 893. 58 Greenlaw v King (1838) 1 Beav. 137, 143–144; 48 ER 890, 893–894. 59 Greenlaw v King (1838) 1 Beav. 137, 144; 48 ER 890, 894. 60 Greenlaw v King (1838) 1 Beav. 137, 145; 48 ER 890, 894. 53

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In Russell v Jackson62 Sir GJ Turner, the Vice-Chancellor, explained that the existence of legal professional privilege is not premised in “the confidence reposed by the client in the solicitor”63 but rather “on a regard to the interests of justice … and to the administration of justice which cannot go on without the aid of men skilled in jurisprudence … [for] if the privilege did not exist at all, everyone would be thrown upon his own legal resources [and,] deprived of all professional assistance, a man would not venture to … tell his counsellor half his case”.64 If it were otherwise, in this Vice-Chancellor’s opinion, a privilege would lie “in other cases in which at least equal confidence is reposed: in the cases for instance, of the medical man and the patient, and of the clergyman and the prisoner”.65 The facts in both Anderson v Bank66 and Wheeler v LeMarchant,67 have been set out in detail in chapter one. In Anderson v Bank the English Court of Appeal denied that legal professional privilege extended to protect information an overseas bank prepared for its client after litigation had commenced. In Wheeler v LeMarchant, the same court denied that legal professional privilege protected written exchanges between a solicitor and his client’s surveyor before the dispute arose. In Anderson v Bank, Sir George Jessel MR quoted Lord Cottenham’s judgement in Reid v Langlois68 which denied that legal professional privilege extended to cover communications with a third party, even though those communications resulted in the production of documents in litigation. The object of legal professional privilege for Lord Cottenham was “to protect the party who wishes to take the advice of professional men”.69 Sir George Jessel MR then denied the existence of both doctor-patient privilege and the religious confession privilege which is recognised “in foreign countries where the Roman Catholic faith prevails”70 because “[w]hen Lord Cottenham says “professional men” he means members of the legal profession

61

Idem. Russell v Jackson (1851) 9 Hare 387; 68 ER 558. 63 Idem. 64 Idem. 65 Idem. 66 Anderson v Bank of British Columbia (1876) 2 Ch D 644. 67 Wheeler v LeMarchant (1881) 17 Ch D 675. 68 Reid v Langlois (1849) 1 Mac & G 627; 41 ER 1408. 69 As quoted by Sir George Jessel MR in Anderson v Bank of British Columbia (1876) LR 2 ChD 644, 650. 70 Anderson v Bank of British Columbia (1876) LR 2 ChD 644, 650–651. 62

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and nothing else”.71 In Wheeler v LeMarchant, Sir George Jessel MR essentially repeated his Anderson v Bank obiter statement against the existence of religious confession privilege, but without the citation of Lord Cottenham’s authority and his doubtful explanation of what Lord Cottenham meant. While it remains doubtful that Chief Justice Holt in 1693 intended by his obiter dicta comments in his Anon decision to say anything at all about religious confession privilege, it is clear that Lord Langdale in Greenlaw v King, Sir GJ Turner, the Vice-Chancellor in Russell v Jackson and Sir George Jessel MR in both Anderson v Bank and Wheeler v LeMarchant intended to deny the existence of religious confession privilege. So elementary was that denial, that only Sir George Jessel MR referred to authority, but his quotation from Lord Cottenham really meant little more than res ipsa loquitur. But as my historical analysis in chapters two and three has demonstrated, the thing does not speak for itself. To properly assess the authority of these influential obiter dicta statements against the existence of religious confession privilege, they must be weighed against the opposing views of equally influential judicial minds who were equally sure that the privilege did exist. Legal Professional Privilege Cases that Contain Obiter Statements that Doubt Denials of Religious Confession Privilege Neither Lord Kenyon CJ in 1792, nor Chief Justice Best in 1828 agreed that legal professional privilege was the only privilege against evidential compulsion known to English law, and both disagreed with brother judges in recorded judgements promptly after views disavowing religious confession privilege were brought to their attention. Lord Kenyon’s doubt that religious confession evidence had been properly compelled the previous year, was discussed in chapter one as a part of the writer’s discussion of the error in R v Sparkes.72 In Du Barré v Livette,73 Lord Kenyon was asked to compel the interpreter who assisted defence counsel in a case of jewellery theft, to disclose conversations between one of the accused, Livette, and his lawyer. Counsel for Du Barré used an analogy to press his case by suggesting that since Justice Buller had decided the previous year that a Catholic prisoner’s confession to a Protestant clergyman was compellable74, the interpreter should be compelled here. Lord Kenyon found that the interpreter was as protected by legal professional privilege as Livette’s lawyer himself since the attorney could not fulfill his proper function without the involvement of the interpreter.75 However, rather than letting the 71 72 73 74 75

Idem. Unreported but referred to in Du Barré v Livette (1791) 1 Peake 108; 170 ER 86. Du Barré v Livette (1791) 1 Peake 108; 170 ER 96. Du Barré v Livette (1791) 1 Peake 108, 109; 170 ER 96, 97. Idem.

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analogy pass, he said that he would have paused before he admitted the evidence Justice Buller had admitted in R v Sparkes.76 While the language was temperate, even understated, the message was clear. The Chief Justice did not think that even an irregular religious confession should have been admitted as evidence, but he did not say why. Chief Justice Best was more forthright when he learned that his decision to prevent a clergyman giving evidence in R v Radford77 in 1823 had been disapproved by the banc of judges who decided that Gilham’s evidence was not illegally induced in 1828. For six weeks after the decision in R v Gilham78 was handed down, he took the opportunity to respond in Broad v Pitt,79 another case about legal professional privilege. The facts of Broad v Pitt are not reported. However, despite the brief report, it is clear that the case concerned the question of whether legal professional privilege applied to a conversation between Pitt and his attorney when Pitt “executed a deed which the latter had prepared for him as his professional adviser”.80 Chief Justice Best decided that legal professional privilege only applied in cases where communications flowed from a person’s need for legal advice “for the purpose of defending himself or of commencing an action”,81 but not, as here, where the advisor was only “consulted about a deed”.82 He then commented about religious confession privilege as follows: I think this confidence in the case of attornies is a great anomaly in the law. The privilege does not apply to clergymen, since the decision the other day, in the case of Gilham (Carr. Suppl. 61). I, for one, will never compel a clergyman to disclose communications made to him by a prisoner; but if he chooses to disclose them, I shall receive them in evidence. There is also no privilege of this description in the case of a medical man.83

While the report suggests that Chief Justice Best believed that the decision in R v Gilham had extinguished religious confession privilege, the Chief Justice’s opinion is unclear since he still says that he would not compel a clergyman to give evidence in his court. It may be that the Chief Justice considered some part of what he believed was pre-existing common law protection for clerical confidentiality had been extinguished by the R v Gilham obiter. Or perhaps he was just annoyed that his course in R v Radford had been disapproved. He certainly did not believe the decision in R v Gilham had extinguished his discretion to exclude religious confession evidence. He is not the only judge to have

76 77 78 79 80 81 82 83

Du Barré v Livette (1791) 1 Peake 108, 110; 170 ER 96, 97. Unreported, but referred to in R v Gilham (1828) 1 Moody 186; 168 ER 1235. R v Gilham (1828) 1 Moody 186; 168 ER 1235. Broad v Pitt (1828) 3 Carr & p. 518; 172 ER 528. Idem. Broad v Pitt (1828) 3 Carr & p. 518, 519; 172 ER 528, 529. Idem. Broad v Pitt (1828) 3 Carr & p. 518, 519; 172 ER 528–529.

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believed he had such discretion. I consider the cases which arguably recognise a broader and discretionary religious “communications” privilege in detail in chapter five. What is evident is that Chief Justice Best was not present in banc when the Gilham decision was taken and that he had not read the report. For if he had read the report or been present in banc, he could have further distinguished Park J’s obiter comments about religious confession privilege since that case really only decided that spiritual inducements could not invalidate an otherwise voluntary confession of crime. Though Park J had opined against religious confession privilege when discussing Best CJ’s decision in R v Radford, he had done so on the basis of Peake and Starkies’ flawed commentary on the decisions in R v Sparkes and Du Barré v Livette. Best CJ’s tenacity, despite the evident criticism of his brethren,84 is the more remarkable since he maintained his opinion anyway – and offered legal justification for continued practical recognition of religious confession privilege by suggesting that perhaps it was subject to waiver by priest (R v Radford) or penitent (Best CJ’s apparent understanding of the facts in R v Gilham). Indeed, given Park’s summary of the Radford facts – that Chief Justice Best had actually forbidden the priest from giving evidence in that case when he was willing to do so – Best CJ effectively said that the only change made by the Gilham obiter to his understanding of the underlying common law, was that judges must allow willing clergymen to testify, implying that judges should still exclude evidence of religious confessions in cases where priests declined to testify willingly. In addition to the cases about legal professional privilege cited in commentary which do include obiter dicta comments for and against the existence of religious confession privilege, there are legal professional privilege cases cited which say nothing about religious confession privilege at all. The only reason why they seem to have been so mentioned, is because they feature strong statements denying that there is any evidential privilege at all except for members of the legal profession. Legal Professional Privilege Cases that Are Cited in Evidence Texts About Religious Confession Privilege But Which Do Not Even Mention Religious Confession Privilege That these cases carry little weight against religious confession privilege despite citation for that purpose in commentary is also exposed by the observation 84 Though the report in R v Gilham cites only the opinion of Park J against Best’s decision to exclude the clergyman’s evidence in R v Radford, since Park’s brethren concurred with him in the result in banc, Best appears to have felt that they all concurred in Park’s opinion against his Radford decision.

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that their generalised denials have been used to deny the existence of other evidential privileges including those that protect state secrets and the privilege against self-incrimination. Perhaps again, the commentators included references to these cases because the analogy between priests and lawyers seems more natural since both intercede between individuals and a higher power.85 Vaillant v Dodemead86 was a 1743 case decided by the Lord Chancellor. Dodemead had produced his clerk in court, a Mr Bristow, to provide evidence about “a collusive assignment made by the defendant Dodemead of a lease to one Lascells, a prisoner in the Fleet, in order to avoid paying a ground rent to the plaintiff ”.87 Mr Bristow demurred from answering questions in crossexamination on the basis “that he knew nothing of the matters inquired of, except what came to his knowledge as the defendant’s clerk in court, or agent”.88 In overruling his demurrer, the Lord Chancellor said that “no persons are privileged from being examined in such cases, but persons of the profession, as counsel, solicitor, or attorney, for an agent may only be a steward, or servant”.89 He also said that because Bristow had consented to being examined in chief, he had waived any right even a counsel or attorney might have had to demur on grounds of legal professional privilege. Wilson v Rastall90 is possibly more significant than Vaillant v Dodemead on two counts. First, it was decided the year after Lord Kenyon CJ had disapproved of Buller J’s decision to admit evidence of an irregular religious confession in R v Sparkes,91 and secondly, because the current Chief Justice of the New South Wales Supreme Court, cited it as authority for his proposition that there is no religious confession privilege except by statute.92 An attorney named Mr B Handley, by convoluted circumstances, had come into possession of letters apparently material to a bribery case following an election “for the borough of Newark upon Trent”.93 The attorney claimed that he was entitled to refuse to produce the letters or answer questions about them, since he had been consulted in a professional capacity by the owner, though he had never acted as the owner’s attorney. Before Baron Thomson in

85

See earlier comparison supra, p. 95. Vaillant v Dodemead (1743) 2 Atk 54; 26 ER 715. 87 Idem. 88 Idem. 89 Idem. 90 Wilson v Rastall (1792) LTR 753; 100 ER 1283; (1775–1802) All ER 597. 91 Unreported but referred to in Du Barré v Livette (1791) 1 Peake 108; 170 ER 86. Note that Lord Kenyon CJ and Buller J sat together in Wilson v Rastall. 92 R v Young (1999) 46 NSWLR 681, 699, para 88, per Spigelman, CJ, though note it is possible to read his citation of Wilson v Rastall as authority only for the first proposition (“The common law refused to afford privilege to exceptional sensitive confidential relationships”) and not for the statement after which it was cited (“No such privilege was recognised until statutory modification”). 93 Wilson v Rastall (1792) LTR 753; 100 ER 1283; (1775–1802) All ER 597. 86

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the first instance criminal trial, it was held that the attorney “was not bound”94 to produce the letters. Lord Kenyon and Mr Justice Buller did not agree. Lord Kenyon said: The evidence of B. Handley was rejected on account of a confidence supposed to have been reposed in him by the defendant, for the witness said that the letters were delivered to him in consequence of the defendant’s consulting him professionally … It expressly appears from [Mr B. Handley’s] … own evidence that he was not, nor could be, employed as an attorney. I have always understood that the privilege of a client only extends to the case of an attorney for him … In order to show that the privilege extends beyond the case of an attorney and client, a hard case has been pressed on our feelings of confidence reposed in a friend … I … think that this privilege is only allowed in the case of attorney and client.95

Mr Justice Buller was more direct: The privilege is confined to the cases of counsel, solicitor and attorney. In order to raise the privilege … it must be proved that the information was communicated to the witness in one of those characters … as B. Handley was neither the attorney of W. Handley nor of the defendant, I am of the opinion that he was improperly prevented from producing the letters in question.96

It is noteworthy that Lord Kenyon did not reiterate or justify his extension of legal professional privilege to the lawyer’s interpreter the previous year in Du Barré v Livette. Both Judges decided Wilson v Rastall on its distinct facts and resisted the invitations of counsel to extend or generalise that specific privilege into a wider privilege benefitting confidentiality simpliciter. Commentative assertions that Wilson v Rastall represents further proof that religious confession privilege had been extinguished by the turn of the nineteenth century97 may thus be discounted. In Falmouth v Moss,98 the Earl of Falmouth sought to extend legal professional privilege to exclude evidence that might have been given by his steward, a sometimes conveyancer,99 but who was admitted not to be an attorney. This case may be similarly dismissed as not impacting on religious confession privilege.

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Wilson v Rastall (1775–1802) All ER 597, 598. Wilson v Rastall (1775–1802) All ER 597, 599. 96 Wilson v Rastall (1775–1802) All ER 597, 600. 97 SM Phillipps (A Treatise on the Law of Evidence, 2nd ed, London, A Strahan; Dublin, J Butterworth and Son and J Cook, 1815, p. 104), RN Gresley (A Treatise on the Law of Evidence in the Courts of Equity, Philadelphia, PH Nicklin & T Johnson, 1827, p. 281), and A Hawke (Roscoe’s Digest on the Law of Evidence and the Practice in Criminal Cases in England and Wales, 15th ed, London, Stevens and Sons Ltd; Sweet and Maxwell Ltd, 1928, p. 178) all so use the case. Nokes again notes that it contains dicta “confining privilege to the legal profession, but not referring to the position of ministers of religion” (Nokes, GD, “Professional Privilege” (1950) 66 LQR 88, 97). 98 Falmouth v Moss (1822) 11 Price 455; 147 ER 530. 99 Falmouth v Moss (1822) 11 Price 455, 457; 147 ER 530, 532. 95

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The inductive generalisation of broad principles from cases about legal professional privilege has contributed to the mistaken belief that religious confession privilege has been extinguished from the common law by a line of authoritative cases. But it is not the only analytical error that has contributed to that mistaken belief. A correct understanding of religious confession privilege has also been confused by cases which involve irregular confessions. The entire history of the development of the law relating to legal professional privilege has been the story of refining the scope of that privilege and denying it was available to people outside the legal profession. Judges are of course, uniquely qualified to decide whether a legal professional privilege claimant is a legal practitioner. They are also eminently qualified to decide whether a particular communication has the hallmarks of a legally privileged communication. But the adjudication of whether an individual is a qualified clergyman and whether a confession is regular according to the tenets of a particular faith, is beyond the competence of most judges – and there is a very strong body of common law authority that states that secular courts have no business adjudicating matters that have ecclesiastical content. Yet until the New South Wales religious confession privilege statute passed into law in 1989 suggested that the member of the clergy claiming religious confession privilege is the proper adjudicator of whether what was heard was a confession or not, that possibility never appeared in commentary. While there are a number of cases where Judges have perceived the difficulty, no common law text has ever explored whether such perplexity has been a valid factor in denial of the privilege. The next section of this chapter therefore considers various examples of confessional irregularity to determine whether the decisions in these cases can be said to have extinguished religious confession privilege at common law. Irregular Confessions Garnet’s case, decided in 1606, was the last prosecution flowing from the Gunpowder Plot of 1605. The facts are set out in chapter three, as is the illogic of using Garnet’s case as authority for the proposition that there was no religious confession privilege after the English Reformation. For if there was no religious confession privilege at common law, why such considerable effort to deny that Garnet’s communication was a religious confession?100 It would have been altogether simpler to have dismissed Garnet’s argument that his communications with Greenwell and possibly Catesby were privileged out of hand since no such privilege was known to English common law. But Coke and two

100 As discussed in chapter two, pp. 43–44, 48–54, this same reasoning makes Coke’s stretching to find a treason exception to religious confession privilege in English common law an argument which proves the existence of the underlying privilege.

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of the nine Commissioners who sat to guide the jury on the case, went to great lengths to disabuse the jury of the notion that Garnet’s religious confession defence had any substance. Because Buller J did not make an issue of the irregularity of the confession in R v Sparkes, that irregularity does not underscore recognition of religious confession privilege at common law as does the legal argument in Garnet’s case. Indeed, though the irregularity of confession point was not lost on counsel who sought to use the decision as a precedent narrowing a claim of legal professional privilege in Du Barré v Livette argued before Lord Kenyon CJ the following year, Mr Justice Buller had apparently dismissed both the religious confession privilege and irregularity arguments summarily since no such privilege was known to English common law. Because the case is not reported, we have no knowledge of the basis upon which Buller J dismissed the religious confession argument. We do not know, for example, if Coke’s Second Part of the Institutes was cited or the argument about the privilege from the report in Garnet’s case. But it does seem that something was made of the irregularity of the confession since that is the way the argument was presented to Lord Kenyon in Du Barré v Livette. Though the decision in R v Sparkes may be one of the authoritative decisions against the existence of religious confession privilege that Wigmore says that he cited in his footnotes,101 questions remain. Since a Catholic priest of that day would probably deny that the alleged confession was a confession at all since it was made to a Protestant clergyman, did this unreported decision of Buller J authoritatively confirm once and for all that there was no religious confession privilege? Was authority cited? If so, did Buller J consider and then distinguish or dismiss that authority? Or did he simply wave his hand and say that the argument was irrelevant either on the basis that this was not a confession at all, or because there was no religious confession privilege at common law? It may be that the evidence text writer WM Best102 took a better approach when he suggested that the decision in R v Sparkes was more of a commentary on the rampant anti-Catholic prejudice endemic in England in 1790, than it was upon the existence of religious confession privilege at common law. WM Best certainly thought it academically reasonable to set the decisions in both R v Sparkes and Butler v Moore103 to one side and not count them as authorities against the existence of religious confession privilege on the basis that they were tainted by prejudice.104 There is

101 Wigmore, JH, Evidence in Trials at Common Law, revised by John T McNaughton, Boston, Little Brown and Company, 1961, Vol 8, pp. 867–870 – though the text does not spell out which of the authorities listed (including R v Sparkes) are his “at least two decisive rulings … which deny … the existence of a [religious confession] privilege”. 102 Best, WM, A Treatise on the Principles of Evidence, London, S Sweet, 1849. 103 Butler v Moore (1804–1806) 2 Sch & Lef 249. This case is discussed in more detail infra, pp. 114–115, and also in chapter six, pp. 161–163. 104 Best, WM, op cit, pp. 459–460.

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also the point of distinction asserted later by Best CJ in his obiter comments in Broad v Pitt, that the Protestant clergyman in R v Sparkes had evidently testified willingly and had therefore waived any privilege that otherwise obtained.105 Whatever the correct analysis may be if these remaining questions could be answered, it is not reasonable to induce the finding that religious confession privilege was extinguished from common law by the argument or the results in Garnet’s case or R v Sparkes. The decision in R v Gilham was set out in detail in chapter one106 and has been referred to earlier in this chapter.107 Though various commentaries cite it as authority against the existence of religious confession privilege at common law,108 I have shown that it actually decided that confessions induced by spiritual promises were admissible. It is only an ‘irregular confession’ case in the sense that though the confessions concerned may have been made for spiritual purpose, no one asserted they were religious confessions and it is hard to see how they could have been since none was made to a member of the clergy.109 For it does not appear from the report that anyone had to be compelled to give evidence against either their will or their religious scruples. Nor does the report of the decision in R v Wild110 advance the case for or against the existence of religious confession privilege at common law. William Wild was a thirteen-year-old boy accused of murdering a three-year-old girl named Elizabeth Smith. As in R v Gilham, the death sentence had been passed upon the prisoner, but the execution was respited so that “the opinion of the Judges [could be taken] upon the admissibility of certain confessional evidence, which counsel for the prosecution thought it necessary to adduce”.111 None of the persons who received confessional evidence from the boy held any clerical status whatever, though the record repeats the fact that they were not constables either. In particular, one William Clark had questioned the boy, having required first that he should kneel down and tell the truth in the presence of the Almighty.112 After this admonition, the boy had responded that “he pushed one [girl] in with one foot, and the other with the other, but not

105

See discussion supra, pp. 102–103. Chapter one, pp. 18–20. 107 Supra, pp. 93, 102–103. 108 JP Taylor (A Treatise on the Law of Evidence, London, A Maxwell & Son, 1848, Vol 1, p 618), Edward Smirke’s 10th ed of Roscoe’s Nisi Prius (London, V & R Stevens and Sons & H Sweet and W Maxwell, 1861, p. 142), JF Hageman (Privileged Communications as a Branch of Legal Evidence, Littleton Colorado, Fred B Rothman & Co, 1983 reprint of the 1889 edition, pp 122–123), as well as M Powell’s 1907 18th ed of Roscoe’s Nisi Prius. 109 R v Gilham also counts as an irregular confession case since various commentaries assert that it is a religious confession privilege case even though the confessions involved were not asserted to be regular religious confessions by any measure. 110 R v Wild (1835) 1 Moody 452; 168 ER 1341. 111 Idem. 112 R v Wild (1835) 1 Moody 452, 453–454; 168 ER 1341. 106

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purposely”113 – though his formal pre-cautioned statement had said that both girls had fallen into the pit when he had stumbled against Martha who was being held by the waist by Bessy.114 Though the banc of judges found the evidence given by William Clark “strictly admissible, they much disapproved of the mode in which it was obtained”,115 but they commuted the death sentence and the boy was transported for life.116 It is doubtful that there was anything irregular about this confession, though it was not even asserted that it was privileged as a religious confession and the case was referred to higher authority as R vGilham had been, simply because there was doubt whether the confession had been properly obtained. While one can feel some compassion for a thirteen-year-old boy who was first sentenced to death and then ‘mercifully’ transported instead because he had accidentally pushed a girl who could not swim into the water, it is doubtful that the case should have been cited in connection with any form of evidentiary privilege. In re Keller117 and Normanshaw v Normanshaw118 are included here as cases about irregular confession because though cited in connection with religious confession privilege, they are really cases about whether religious confession privilege should extend to protect confidential communications with clergy, since the member of the clergy in both cases asserted religious confidentiality as a reason why he should not be compelled to give evidence. Normanshaw v Normanshaw in particular is also discussed in some detail in chapter five in connection with an arguable religious ‘communications’ privilege at common law because of several equivocal statements Jeune P is reported to have made about discretion. But the case still demonstrates how even when there was no religious confession at all, such cases were nonetheless cited in the commentaries as authority against the existence of religious confession privilege.119 The Reverend Mr Keller had been questioned in the Irish Court of Bankruptcy in connection with the bankruptcy of one Patrick O’Brien, and declined to answer a question about his whereabouts “on the 16th of November last?120 When he was asked the reason why he declined to answer that question, he explained that he could not answer it because doing so “would tend to compel me to disclose secrets that I cannot in honour disclose, or in duty to

113

R v Wild (1835) 1 Moody 452, 454; 168 ER 1342. R v Wild (1835) 1 Moody 452, 454–455; 168 ER 1342. 115 R v Wild (1835) 1 Moody 452, 455; 168 ER 1342. 116 Idem. 117 In re Keller (1887) L.R. Ir. 158. 118 Normanshaw v Normanshaw (1893) 69 LTR 468. 119 For example, Phipson in his 5th edition (Law of Evidence, 5th ed, London, Stevens and Haynes, 1911, Vol 2, p. 188) and the editors of the 13th edition of his work in 1982 (Buzzard JH, May R and Howard MN, Phipson on Evidence, 13th ed, London, Sweet & Maxwell, 1982, para 15–09) so treat the decision in Normanshaw v Normanshaw. 120 In re Keller (1887) L.R. Ir. 158, 159. 114

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my sacred profession”.121 When pressed, the Reverend Mr Keller carefully explained further that an answer to the question “would tend to elicit disclosure of a conversation … with the bankrupt, or other persons – disclosures of which I may have become cognizant simply and solely because of my being a priest”.122 When Judge Boyd suggested that he did not believe this question concerned his clerical duties, the Reverend Mr Keller answered: Your Lordship, of course, is the proper interpreter of the law in this Court; but I beg respectfully to say that your Lordship cannot be expected to understand the nature of the obligations of a Catholic priest, or the laws of Catholic discipline, or the laws or usages of Catholic discipline that would bind him to consider as a sacred trust the confidence reposed in him by his parishioners, or by his Catholic people. I beg to repeat that my knowledge of my duty and my conscience must be my own guide in reference to any answers I make in that respect.123

In the absence of any argument evident from the record about the existence of either religious confession privilege or religious communications privilege, Judge Boyd exercised “power to commit for contempt witnesses refusing to answer a legal question”.124 The matter came before the Irish Court of Queen’s Bench as an application made on behalf of the priest for a writ of habeas corpus directed to the Governor of the prison125 where he had been held for six weeks since Judge Boyd’s committal order.126 It further came before the Court of Appeal eight days later as an appeal from an order in Queen’s Bench that had refused the application for habeas corpus. The reported legal argument focused upon questions not relevant to religious confession privilege127 and ultimately the Queen’s Bench order denying the application for habeas corpus was reversed 4:1 and Father Keller was released from prison. The various decisions in In re Keller do not really advance our understanding of the law with regard to religious confession privilege. Perhaps Nokes’ suggestion that it demonstrates judicial reluctance to punish the moral convictions

121

In re Keller (1887) L.R. Ir. 158, 160. Idem. 123 Idem. 124 Idem. 125 In re Keller (1887) L.R. Ir. 158, 162. 126 The original examination of the Reverend Mr Keller in the Court of Bankruptcy was heard on 19 March 1887, on which date he was committed for contempt. The application made for habeas corpus on his behalf was heard in the Irish Court of Queen’s Bench on 4 and 5 May 1887, and the appeal on 13, 19, 20 and 21 May 1887. 127 The legal issues upon which the Court of Appeal focused were: firstly, whether the matter was a criminal matter, in which event the Court of Appeal could not hear the appeal at all under the provisions of the Irish Judicature Act, and second, whether the Irish Court of Bankruptcy was an Inferior or Superior Court. If Inferior, it was argued that it had no power to commit for contempt in the first place; if Superior, then it had power to commit and the Court of Appeal allegedly had power only to examine the committal warrant itself for regularity. 122

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of a priest128 is the most that can be said of the decision. That view certainly resonates with McNicol’s observation that the state is wise to try and avoid conflict at the church/state intersection.129 In Normanshaw v Normanshaw, the Reverend Wm. Richardson Linton, vicar of Shirley, at first objected to deposing to details of a conversation he had had with the respondent wife in a divorce petition on grounds of adultery. Though Jeune P said that each case of confidential communications was to be treated on its own merits, he saw no reason in this case why the witness should not speak about the relevant conversation. When the clergyman did disclose the details of the conversation that had taken place, it was clear there had been no confession but rather they had discussed whether the respondent should go to the penitentiary or not. Whether disclosure of that conversation was decisive in the jury’s finding that the adultery was proven is not stated. Once again, the failure in the commentary to analyse the facts and decision has seen the report of this case generalised as an authority against the existence of religious confession privilege.130 That is clearly not correct. While R v Hay131 is not a case about irregular confession, it is appropriately discussed here because it appears to demonstrate more judicial reluctance to confront the privilege head on despite the apparent availability of relevant and probative evidence. It has been cited by commentators both as authority for132 and authority against133 the existence of a religious confession privilege. Hay was accused of robbing a prosecutor, Daniel Kennedy, of a silver watch. The watch had been recovered from the Reverend John Kelly, a Catholic priest134 who was called to give evidence as to the identity of the person from whom he had received it. Father Kelly at first declined to make the court oath, but reconsidered and took the oath after Justice Hill explained that it was his duty “as a loyal subject”135 to do so, especially since he had the right to object and have his objection sustained, if his answer might incriminate himself. It appears that Father Kelly might have objected to answer questions related to the circumstances of the confession on the grounds that his answers might 128

Nokes, GD, “Professional Privilege” (1950) 66 LQR 88, 97. McNicol, SB, Law of Privilege, Australia, The Law Book Company Limited, 1992, pp 330, 337. 130 See note 119 supra. 131 R v Hay (1860) 2 F & F 4; 175 ER 933. 132 McWilliams, PK, Canadian Criminal Evidence, 2nd ed, Aurora Ontario, Canada Law Book Limited, 1984, p. 923. 133 For example, Hageman, JF, Privileged Communications, Princeton New Jersey, Honeyman & Co, 1889, p. 127. It seems that R v Hay may be one of the two cases that Wigmore considered was decisive against the existence of religious confession privilege (Wigmore, JH, Evidence in Trials at Common Law, revised by John T McNaughton, Boston, Little Brown and Company, 1961, Vol 8, pp. 867–870). 134 Though it is unusual to refer to a Catholic priest with the title “Reverend”, that is done several times in this report. 135 R v Hay (1860) 2 F & F 4, 6; 175 ER 933, 934. 129

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incriminate him under canon law. But it is not clear whether Hill J was suggesting he make such an objection, or indeed telling him that a self incrimination objection was not available because the risk of becoming subject to canon law penalties was not recognised as a species of incrimination in English secular courts. It is more likely that Hill J’s reference to the possibility of selfincrimination, was a reference to the possibility that Father Kelly may himself have committed a crime in stealing the watch or in receiving stolen property. In any event, when the prosecutor asked the central question – “from whom did you receive the watch?”136 – Father Kelly answered, “I received it in connexion with the confessional”.137 It is at this point that the different interpretations of the meaning of the case as a precedent in the commentaries is identified. Hill J intervened: You are not asked at present to disclose anything stated to you in the confessional; you are asked a simple fact – from whom did you receive that watch which you gave to the policeman?138

When Father Kelly explained that he could not answer that question without suspension for life under the laws of the Church as well as offending what he regarded as “the natural laws”,139 Hill J repeated his explanation that Father Kelly was only required to depose to facts and that no confessional material was required from him.140 When Father Kelly repeated his refusal to answer, he was adjudged guilty of contempt and taken into custody, and other witnesses were called,141 though the report does not reveal Hay’s fate. Though some commentators maintain that R v Hay is a precedent that denies the existence of a religious confession privilege since the clear result of Hill J’s adjudication was to deny Father Kelly’s understanding of his own canon law obligations,142 it is also true to state the contrary,143 since the Judge was at pains to point out that the question required no breach of the confessional seal. What does the decision in R v Hay say about religious confession privilege? Finlason, who reported it, clearly did not feel that Hill J had properly or adequately dealt with the common law of religious confession privilege – indeed, his footnotes pointing to the “correct” result amount to an essay longer than the report itself, setting out the pre-existing canon and common law upon

136 137 138 139 140 141 142 143

Idem. Idem. R v Hay (1860) 2 F & F 4, 6–7; 175 ER 933, 934–935. R v Hay (1860) 2 F & F 4, 7; 175 ER 933, 935. R v Hay (1860) 2 F & F 4, 9; 175 ER 933, 936. R v Hay (1860) 2 F & F 4, 10; 175 ER 933, 936. See note 133. See note 132.

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which the case might have been decided.144 Hageman appears to have thought Hill J’s practical decision in R v Hay decisive of the point in “both England … and the United States … that priests are not privileged”.145 However, Phipson146 and Nokes147 did not consider that the recorded facts underlying the decision really raised the privilege and so left the general question untouched. It is submitted that those views are fairer than an assertion that the case represents a clear decision against the privilege, as seems the intent of Wigmore’s commentary.148 Lord Chief Justice Coleridge’s anecdotal observation that Hill J, the judge in R v Hay, was a strong Ulster Protestant,149 is not helpful either. Though a more sympathetic judge such as Lord Kenyon CJ in Du Barré v Livette,150 Best CJ in Broad v Pitt151 or Baron Alderson in R v Griffin152 might have prevented the prosecutor from pressing a reluctant clergyman for an answer to this question, it is reasonable to observe that Hill J felt he was left with little choice but to hold Father Kelly in contempt. The report does not suggest any authority in favour of religious confession privilege was argued nor was any self-incrimination objection made, yet Father Kelly steadfastly refused to depose to facts which did not themselves disclose any spoken confessional secret. However, Hill J’s use of a legal interpretation of what constituted a religious confession to rebut Father Kelly’s insistence that he could not depose the required fact without breaching canonical laws, echoes Coke’s theological debate with Father Henry Garnet about the definition of a religious confession in 1606. That same debate recurred at first instance in In re Keller twenty-seven years after Hill J decided R v Hay and appears as one conceptual reason why the New South Wales religious confession privilege statute in 1989, sought to take the definition of what constitutes a religious confession away from the judiciary. A cynic might take the view that the interpretive possibilities thus available to a judge, enable whatever decision the judge wants to take. For a narrow 144 See R v Hay (1860) 2 F & F 4, 7; 175 ER 933. Note too that the editor of “The Jurist” in 1860 agreed with Finlason (“The Jurist” (1860) Part 2, 319). 145 Hageman, JF, Privileged Communications, Princeton New Jersey, Honeyman & Co, 1889, p. 127. 146 Editing the 11th edition of Best’s Law of Evidence, London, Sweet & Maxwell, 1911, p. 562. 147 Nokes, GD, “Professional Privilege” (1950) 66 LQR 88, 97. 148 Wigmore, JH, Evidence in Trials at Common Law, revised by John T McNaughton, Boston, Little Brown and Company, 1961, Vol 8, pp. 867–870 – though the text does not spell out which of the authorities listed (including R v Hay) are his “at least two decisive rulings … which deny … the existence of a [religious confession] privilege”. 149 1890 correspondence of Lord Chief Justice Coleridge with Mr Gladstone “(later Prime Minister of England)” concerning the case of Constance Kent (Coleridge, EH, Life and Correspondence of John Duke Lord Coleridge Lord Chief Justice of England, London, William Heinemann, 1904, Vol 2, p. 365). The views of Lord Chief Justice Coleridge concerning religious confession privilege are considered infra, pp. 119–120. 150 Du Barré v Livette (1791) 1 Peake 108; 170 ER 96. 151 Broad v Pitt (1828) 3 Carr & p. 518; 172 ER 528. 152 R v Griffin (1853) 6 Cox Cr Cas 219. This case is discussed infra, pp. 115–116.

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interpretation of even the broadest statute, particularly where a definition of religious confession is provided, will enable a judge to admit almost any otherwise relevant evidence. But if a judge wishes to respect even a very informal ecclesiastical confidentiality practice in a jurisdiction without a religious confession privilege statute, there is a line of authority that allows the exclusion of religious communications that are merely confidential.153 Were There Any Clear Cases? There were four cases between the seventeenth and the twentieth centuries that are said to have involved religious confessions, but they do not send a clear signal. The reasons for that uncertainty vest in the fact that one was English, one was Irish, and two were American, and to the extent that they do represent authority where religious confession privilege is concerned, they were evenly split in deciding for and against it. But there are other even more specific reasons why they are not compelling either way. Butler v Moore154 was the earliest in 1801. It was the Irish case which WM Best suggested was best set to one side because it was possibly tainted by antiCatholic prejudice. A Catholic priest had been called to give evidence on whether Lord Dunboyne had returned to the Catholic faith before his death in which event his will would have been invalid. Sir Michael Smith, the Master of the Irish Rolls overruled the priest’s demurrer and held him in contempt of court when he would not answer related questions.155 Although the law report does not detail this process, various authorities confirm that interrogatories were administered by the late Lord’s sister to a priest said to have attended him shortly before his death.156 When the priest refused to answer “on the ground that his knowledge (if any) arose from a confidential communication made to him in the exercise of his clerical functions … he was adjudged guilty of contempt of court and was imprisoned”.157 Since the case did not concern a religious confession but possibly a confidential religious communication, it does

153

That line of authority is the subject of chapter five’s treatment of a religious communications privilege at common law. 154 Butler v Moore (1804–1806) 2 Sch & Lef 249 155 This interpretation of the case is from MacNally (The Rules of Evidence, London, J Butterworth; Dublin, J Cooke, 1802, pp. 253–255). The Schoales and Lefroy report of the case (Butler v Moore (1804–1806) 2 Sch & Lef 249, 254–255) does not report the interchange between the priest and Master of Irish Rolls, recording only that the Lord Chancellor considered that even though a certificate had been produced from the Vicar-General of the diocese of Killaloe of the Church of Ireland confirming that James Butler had renounced “the errors and corruptions of the Church of Rome” that nonetheless “evidence might be given to shew that James was in fact a Papist”. 156 For example, http://en.wikipedia.org/wiki/Butler_v._Moore (last visited 22 July 2006). 157 Idem.

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not represent authority against religious confession privilege at common law, though it has been so represented.158 The two American cases followed. Though United States constitutional law was a large factor in both decisions, they both purported to apply existing English common law. In the first, The People v Phillips,159 Mayor Clinton was detailed in his analysis, but scathing in his criticism. He dismissed the Butler v Moore decision on account of its manifest anti-Catholic bias, and said Justice Buller’s hurried, unresearched, and just plain wrong decision in R v Sparkes had, in any event, been “virtually overturned by Lord Kenyon, who certainly censure[d] it with as much explicitness as one Judge can impeach the decision of his colleague, without departing from judicial decorum”.160 Not surprisingly, Mayor Clinton confirmed that Phillips’ Catholic confession could not be compelled from his priest, primarily on the ground that such compulsion would deny his freedom of religious practice which was protected under New York State Constitution and the federal United States First Amendment. But in The People v Smith161 decided four years later, a confession to a Protestant clergyman was held compellable. Commentary affirms the latter result was a contributing factor in the advent of New York’s religious confession privilege statute eleven years later in 1828.162 While Mayor Clinton’s interpretation of then applicable English common law is interesting, it has not been cited in any relevant English case ever since. Which brings us to R v Griffin163 decided by Baron Alderson164 in 1853. Baron Alderson had an interest in the history of religious confession privilege. That was manifest in obiter dicta remarks he made in Attorney-General v Briant165 about Crown informant privilege in 1846 where he dismissed R v Gilham as wrongly decided after counsel had cited it for comparative purposes. Though he did not say so in R v Griffin, his comment in AttorneyGeneral v Briant makes it clear he was aware of the 1315 Statute Articuli

158 For example in MacNally, L, The Rules of Evidence, London, J Butterworth; Dublin, J Cooke, 1802, pp. 253–255. 159 The People v Phillips, as reported in “Privileged Communications to Clergymen”, The Catholic Lawyer 1 (1955) 198. This case and its sequel, The People v Smith, are discussed in much greater detail in chapter nine. 160 Ibid, p. 204. 161 The People v Smith, (2 City Hall Recorder (Rogers) 77 (Richmond County Court 1817) as reported in “Privileged Communications to Clergymen”, The Catholic Lawyer 1 (1955) 198, 209. 162 Reese, S, “Confidential Communications to Clergy” (1963) 24 Ohio St LJ 55, 57. 163 R v Griffin (1853) 6 Cox Cr Cas 219. 164 Baron Alderson is most famous for his judgement in Hadley v Baxendale (1854) 9 Exch 341 about damages in contract law. 165 Attorney-General v Briant (1846) 15 LJ Exch 265; (1846) 15 M & W 169; 153 ER 808. Baron Alderson’s question and comment to counsel about religious confession privilege in arguendo, is only reported in the LJ Exch report (Attorney-General v Briant (1846) 15 LJ Exch 265, 271).

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Cleri and probably also of Coke’s commentary upon it in his Second Part of the Institutes. In R v Griffin, a workhouse chaplain “was called to prove certain conversations he had had with [the prisoner] with reference to the [alleged injuries she had inflicted on her infant child]”.166 Baron Alderson’s full judgement reads: I think these conversations ought not to be given in evidence. The principle upon which an attorney is prevented from divulging what passes with his client is because without an unfettered means of communication the client would not have proper legal assistance. 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.167

Though Baron Alderson’s statement was made in a case about a religious confession, and though he effectively refused to compel the evidence, he framed the relevant principle so as to broaden the protection provided beyond a narrow religious confession, to encompass any confidential religious communication. But then he qualified the principle by stating bluntly that he was not to be taken as laying down an “absolute rule” – but that certainly in the case before him, it was not appropriate that the evidence be given. Further consideration of the principle in R v Griffin is thus left to chapter five, where the nature and scope of a discretionary religious communications privilege is discussed. While it seems likely that a religious confession would meet Baron Alderson’s test for non-compellable confidential religious communications, since a religious confession seeks spiritual response and assistance, the principle is insufficiently developed to provide much comfort for the clergy in practice. All that remains to conclude this chapter about the common law treatment of religious confession privilege between the seventeenth and twentieth centuries, is to discuss the various extra-judicial comments that followed the case of R v Constance Kent168 in 1865. Extra-Judicial Commentary on R v Constance Kent The case itself has little precedential consequence since Constance Kent eventually pleaded guilty to a charge of murder committed five years previously,

166

R v Griffin (1853) 6 Cox Cr Cas 219. Idem. 168 Unreported, but discussed in the House of Lords (Hansard for the English House of Lords, 13 May 1865). The case is also discussed in Nolan, RS, “The Law of the Seal of Confession”, Catholic Encyclopedia 13 (1913) 649, 658; Phipson, SL, Of the Law of Evidence by the late WM Best, 11th ed, London, Sweet & Maxwell, 1911, pp. 565–566; “Sacerdotal Privilege in English Law” (1956) 221 LTR 268; Tiemann, WH, and Bush, JC, The Right to Silence – Privileged Clergy Communication and the Law, 2nd ed, Nashville, Abingdon Press, 1983, pp. 117–119; Bursell, RDH, “The Seal of the Confessional” (1990) Ecclesiastical LJ 1(7) (1990) 84, 93; and Attlay’s 167

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though not before criminal trial processes had commenced.169 However, her Anglican clergyman’s assertion “that he must withhold any further information [other than was necessarily involved in his helping her ‘give herself up to justice’] on the ground that it had been received under the seal of ‘sacramental confession’ ”170 excited considerable interest outside the court.171 Nolan reports that questions were asked in both Houses of Parliament about the privilege,172 though the public indignation seems to have been largely focused on the enduring ecclesiastical issue173 of whether “sacramental confession” was known in the Church of England.174 In the House of Lords, Lord Westbury (the Lord Chancellor), Lord Chelmsford (a previous Lord Chancellor), and Lord Westmeath (who had raised the question), all opined strongly against the privilege. Lord Chelmsford stated: 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 he had known in confession. He is compelled to answer such a question, and the law of England does not extend the privilege of refusing to answer to Roman Catholic clergymen in dealing with a person of their own persuasion.175

Lord Chelmsford concurred in this view, and Lord Westmeath reported two recent cases176 which he considered demonstrated that there was no religious

Famous Trials of the Nineteenth Century, 1899, p. 113 (cited in “Sacerdotal Privilege in English Law” (1956) 221 LTR 268). 169 Nolan, RS, “The Law of the Seal of Confession”, Catholic Encyclopedia 13 (1913) 649, 658. 170 Idem. 171 There is some debate as to exactly what set off the public debate. For though Nolan says that the debate arose because the clergyman asserted religious confession privilege, Phipson (Of the Law of Evidence by the late WM Best, London, Sweet & Maxwell, 1911) says the debate arose because the magistrates in the case had declined to press the clergyman “who had voluntarily tendered himself as a witness on an application to commit the prisoner for murder” (op cit, p. 565). Since Coleridge LCJ’s (infra, pp. 119–120) who acted as barrister for Constance Kent before he was appointed to the bench, expected a religious privilege contest before Willes J before the defendant decided to plead guilty, Nolan’s view appears to be correct. 172 Nolan, op cit, p. 658. 173 The ecclesiastical distinction here is between the mere obligation of secrecy undoubtedly imposed by the 113th canon of the Church of England and the Roman Catholic doctrinal position which insists that the sacrament of penance or confession is one of the seven inviolable sacraments of the true Christian religion. The underlying canon law debate was discussed supra in chapter three, pp. 78–79, 81–83. 174 Nolan, op cit, p. 658. 175 As quoted in Nolan, RS, “The Law of the Seal of Confession”, Catholic Encyclopedia 13 (1913) 649, 658. 176 The first was in Scotland, which had seen a Catholic priest imprisoned for contempt when he refused to give evidence and was forced to serve his sentence without remission when “the Home Secretary, Sir George Grey [had denied a request for remission made on his behalf and advised that such a remission] … would be giving a sanction to the assumption of a privilege by ministers of every denomination which he was advised they could not claim” (Nolan, op cit, p. 658). The Scottish case is not cited and the writer has been unable to trace any other

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confession privilege. However, the public debate escalated when the “Bishop of Exeter”177 strongly protested “Lord Westbury’s statement in the House of Lords”178 in a letter which argued that the canon law on the subject had been accepted without gainsaying or opposition from any temporal court, [and] that it had been confirmed by the Book of Common Prayer in the service for the visitation of the sick, and thus sanctioned by the Act of Uniformity.179

Lord Westbury had evidently incurred the Bishop’s ire with his suggestion that the obligation of confidentiality imposed upon a clergyman by the 113th canon of 1603 did not apply in the face of a legal compulsion – and in any event that “at the time [1865] … the public was not in a temper to bear [what he regarded as] an … alteration of the rule compelling the disclosure of such evidence.180 Phipson181 rebuts Lord Westbury’s view from Edward Badeley’s “very learned pamphlet … in favour of the seal of the confessional”182 which “quickly followed”183 the debate in the House of Lords: [so] far as members of the Church of England are concerned [the inviolable secrecy of their confessions is not] … weakened by the undoubted fact that the general practice and ministerial solicitation of auricular confession is discountenanced by the Church of England however much that Church may encourage it in particular cases”.184

Badeley had also stated: It is beyond all question that neither the proceedings of the 16th nor those of the 17th century (including therefore the whole period of the Reformation) made any change whatever in the sacred and inviolable character of this religious Rite. They certainly did not render unlawful the general use of private penitential confession, and it is perfectly clear that both by parliament and Convocation the continuation of it in certain cases was directly encouraged.185

Badeley continued that it would take “better arguments … to show that the privilege of secrecy … attached [to the Anglican canon law of confession]

reference to it. The second case, R v Hay, discussed supra (pp. 111–113) had seen Father Kelly imprisoned for contempt when he refused to answer a factual question which did not touch confession. 177 Nolan, op cit, p. 658. 178 Idem. 179 Idem. 180 Idem. 181 Phipson, SL, Of the Law of Evidence by the late WM Best, London, Sweet & Maxwell, 1911. 182 Ibid, p. 566. 183 Idem. 184 Ibid, pp. 566, 567 185 Badeley, E, The Privilege of Religious Confessions in English Courts of Justice considered in a letter to a Friend, London, Butterworths, 1865, p. 32, as quoted by Phipson, op cit, p. 565.

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… was lost at the Reformation”.186 While Badeley said that the “right of Catholics at the present day to have their professions respected in courts of justice rests upon a different ground”,187 it clearly originated in both common and ecclesiastical law. The alleged loss of privileged Catholic confession “because the religion itself was proscribed”,188 has “happily”189 been corrected: the religion is restored, not indeed as the religion of the State, but as one sanctioned and protected by law. The Catholic therefore is reinstated in his right to the perfect enjoyment of all the ordinances of his creed, and of those privileges which are necessary to the performance of every one of his religious duties. If he is not, he has not that benefit which the legislature intended to give him.190

Forty-six years later, Phipson’s concludes that the seal of confession is inviolable at law both because the penitent enjoys a privilege, and because the clerical witness would be exposed to ecclesiastical penalties if he breached the seal.191 He continued: It is submitted that either of these is sufficient in any court, and constitutes in a petty sessional court a ‘just excuse’ for refusal of the witness to answer, within the meaning of sect. 16 of the Indictable Offences Act, 1848, and sect. 7 of the Summary Jurisdiction Act, 1848 … The 113th canon of 1603 … appears to suffice in the case of the Anglican clergy, and the pre-Reformation canons to a similar effect in the case of the Roman Catholic clergy.192

Tiemann and Bush193 add light to the commentary with their citation of a letter about religious confession privilege in 1890 from Coleridge LCJ (who had defended Constance Kent when he practised as a barrister) to Gladstone, later Prime Minister of England.194 Stating first of all that he regarded the judge in the case, Sir James Willes, as the “greatest and largest lawyer [he] ever knew”,195

186

Badeley, op cit, p. 32. Idem. 188 Idem. 189 Idem. 190 Idem. Badeley’s reference to the legislative restoration of the Catholic religion to a position of sanction and protection is an implicit reference to that then well-known and contemporary series of enactments which relaxed the law against non-conformist religion generally, and Roman Catholicism in particular, specifically The Roman Catholic Relief Acts of 1791 (31 Geo. 3, c 32) and 1829 (10 Geo. 4, c 7). 191 Phipson, SLC, Of the Law of Evidence by the late WM Best, London, Sweet & Maxwell, 1911, p. 567. 192 Idem. 193 Tiemann, WH, and Bush, JC, The Right to Silence – Privileged Clergy Communication and the Law, 2nd ed, Nashville, Abingdon Press, 1983. 194 Tiemann and Bush, op cit, pp. 118–119. The original work from which Tiemann and Bush quote is Coleridge, EH, Life and Correspondence of John Duke Lord Coleridge Lord Chief Justice of England, London, William Heinemann, 1904, Vol 2, p. 365. 195 Idem. Note that Coleridge LCJ did not stand alone in this assessment of Sir James Willes. Sir Owen Dixon, Chief Justice of Australia shared his view as is confirmed by his biographer, Philip Ayres (Owen Dixon, Melbourne, The Miegunyah Press, 2003, pp. 109, 232). 187

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ahead of Jessel,196 Cairns,197 and Campbell,198 Coleridge LCJ said Willes J had decided to uphold any objection Coleridge should make to Karslake’s (the prosecutor) efforts to lead the Reverend Wagner’s confessional evidence – but did not need to, both because of the guilty plea, and because the prosecutor was too much the gentleman barrister to raise the suggestion that such evidence might be led.199 Coleridge LCJ further wrote that Willes J had reported to him personally that he had weighed all the judicial authorities on the subject and “had satisfied himself that there was a legal privilege in a priest to withhold what passed in confession”.200 Coleridge LCJ’s personal conclusion that “while Barristers and Judges are gentlemen the question can never arise”201 do add his authority to effect that there should be a privilege, though he was not certain if “English Judges would have upheld ‘Willes’ law’ ”.202 Do these extra-judicial comments prompted by the public debate surrounding R v Constance Kent clarify the law where religious confession privilege is concerned? Probably not, since there is no record that the learned Lords involved ever responded to the reasoned legal and ecclesiastical arguments which their strong initial statements drew from the public. Their certainty is also balanced by the equally non-precedential view expressed by Coleridge LCJ with his second hand additions from Willes J, who was reputedly prepared and ready to hear the legal argument. The concurring opinions of Finlason (in 1860203), Badeley (in 1865) and Phipson (in 1911) that no statute has ever removed the privilege, also remain uncontested. Conclusion The reported cases that have mentioned religious confession privilege since Garnet’s case204 in 1606, have not added to our understanding of that privilege

196 The highest judicial office held by Sir George Jessel was Master of the Rolls in the English Court of Appeal, where he served from 1873 till his death in 1883 (Simpson, AWB (ed), Biographical Dictionary of the Common Law, London, Butterworths, 1984, p. 281). 197 Lord Cairns served twice as Chancellor, the first time for ten months in 1868, and the second time for six years commencing in 1874. He also served as a member of the Court of Appeal in Chancery for a brief period in 1867 (Simpson, AWB (ed), Biographical Dictionary of the Common Law, London, Butterworths, 1984, p. 98). 198 Lord Campbell served as Lord Chief Justice from 1850 to 1859 and then as Lord Chancellor from 1859 till his death at the age of 81 in 1861 (Simpson, AWB (ed), Biographical Dictionary of the Common Law, London, Butterworths, 1984, p. 101). 199 Tiemann and Bush, op cit, p. 118 200 Idem. 201 Ibid, p. 119. 202 Idem. 203 R v Hay (1860) 2 Foster & Finlason 4; 175 ER 933. Finlason’s footnote to the report providing his opinion on the continuing viability of the sacramental seal even in the Anglican church, is longer than the report of the case. 204 Garnet’s case (1606) 2 Howell’s State Trials 217.

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at all. Save perhaps for Baron Alderson’s analogy with legal professional privilege which justified his exercise of discretion in preventing compulsion of the workhouse chaplain’s evidence in R v Griffin,205 there has been nothing other than unsubstantiated denials that there is or ever was any such privilege. Even Butler v Moore,206 an Irish case in 1801, which is said to have decided against the existence of religious confession privilege, but which did not overtly treat a religious confession, has been discredited on grounds of the religious prejudice that is apparent in its premise that a Catholic will was not valid. Since there is no suggestion of statutory abolition either, then the inevitable conclusion of this chapter must be that religious confession privilege survived at least till the twentieth century began.

205 206

R v Griffin (1853) 6 Cox Cr Cas 219. Butler v Moore (1804–1806) 2 Sch & Lef 249.

CHAPTER FIVE

RELIGIOUS COMMUNICATIONS PRIVILEGE AT COMMON LAW Introduction Building upon the proposition that the historical, canonical and common law materials confirm that religious confession privilege has never been extinguished, in this chapter I set out the case for the additional proposition that the common law also recognises a broader privilege for confidential religious communications to be applied by judges on a discretionary basis. That broader discretionary privilege may be seen as a line of judicial recognition that there is a social interest in protecting such communications even though the issue rarely arises in a courtroom – and even though many text books deny the existence of even a narrower religious confession privilege. Though many jurisdictions have turned to statutory codification1 to provide the legal

1 For example, all fifty United States feature some kind of religious confession privilege statute (Alabama Code # 12-21-166 (1975); Alaska R. Evid. 505; Arizona Rev. Stat. Ann. #13-4062; Arkansas R. Evid. 505; California Evid. Code ## 1030–1034; Colorado Rev. Stat. # 13-90-107(c); Conneticut Gen. Stat.Ann. # 52-146(b); Delaware R. Evid. 505; Florida Stat. Ann. # 90.050; Georgia Code Ann. # 38-419.1; Hawaii Rul. Evid. 506; Idaho Code # 9-203(3) (1990); Illinois Comp. Stat. Ann. 5/8-803; Indiana Code Ann. #34-1-14-5; Iowa Code # 622.10 (1997); Kansas Stat. Ann. # 60-429 (1994); Kentucky Rev. Stat. Ann. # 421.210(4); Louisiana Code Evid. Ann art 511; Maine R.Evid. 505; Maryland Code Ann., Cts.& Jud.Proc. #9-111 (1995); Massachusetts Gen. Law Ann. ch. 233, #20A; Michigan Sta. Ann. #600.2156; Minnesota Stat. Ann. #595.02 (1) (c); Missouri Code Ann. #13-1-22(Supp. 1986); Montana Code Ann. #26-1-804 (1994); Nebraska Rev. Stat. #27-506 (1989); Nevada Rev. Stat. # 49.255 (1995) New Hampshire Rev. Stat. Ann. #516.35 (Supp. 1995); New Jersey Stat. Ann. #2A:84A-23; New Mexico R. Evid. 11-506; New York C.P.L.R. 4505; North Carolina Gen. Stat. # 8-53.2 (1995); North Dakota R. Evid. 505; Ohio Rev. Code Ann. # 2317.02(C); Oklahoma Stat. Ann. tit. 12, #2505; Oregon Rev. Stat. # 40.260 (1995); 42 Pennsylvania Cons. Stat. Ann. #5943; Rhode Island Gen. Laws # 9-1723 (1985); South Carolina Code Ann. # 19-11-90; South Dakota Codified Laws ## 19-13-16 to 18 (1995); Tennessee Code Ann. #24-1-206; Texas T. Crim. Evid. 505; Utah Code Ann. #7824-8(3) (1987); Vermont Stat. Ann. tit.12, #1607 (1973); Virginia Code Ann. #8.01-400; Washington Rev. Code Ann. # 5.60.060(3); West Virginia Code # 57-3-9; Wisconsin Stat. Ann. #905.06; Wyoming Stat. Ann. # 1-12-101(a)(iii) (1988) ) as do three of the six Australian states and the two continental territories (Victoria Evidence Act 1958 s. 28(1); Tasmanian Evidence Act 2001 s.127; New South Wales Evidence Act 1995 s. 127; Northern Territory Evidence Ordinances 1939 s. 12(1) and the Australian Capital Territory by virtue of the Commonwealth Evidence Act 1995 s. 127). The list of US religious confession privilege statutes is taken from Chad Horner’s article entitled “Beyond the Confines of the Confessional: The Priest-Penitent Privilege in a Diverse Society ( (1997) 45 Drake LR 697, 703–704. Similar lists may be found in many American articles including those of Jane E Mayes (“Striking Down the ClergymanCommunicant Privilege Statutes: Let Free Exercise Govern”, (1986) 62 Indiana LJ 397, 397–398) and Mary Harter Mitchell (“Must Clergy Tell? Child Abuse Reporting Requirements Versus the Clergy Privilege and Free Exercise of Religion”, (1987) 71 Minnesota Law Review 723, 725).

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certainty required by modern clerical and legal practice,2 it is suggested here that both a religious confession privilege and a confidential religious communications privilege may be identified in the existing common law materials. Elementary Religious Communications Privilege in Cases Already Discussed It has already been observed that Judges have used various tools to avoid a frontal debate about the existence of a religious confession privilege.3 For example, even immediately after the English Reformation when the existence of religious confession privilege must have seemed less questionable, both Coke as prosecutor and two of the Commissioners who judicially presided over Garnet’s jury trial,4 effectively sidelined Garnet’s religious confession privilege defence by defining the issue out of jury consideration. Hill J’s finding of contempt against Father Kelly because he refused to disclose not confessional material but a peripheral “fact”,5 may be seen as another example of a judge avoiding confrontation even though the reporter6 sought to expose the sophistry he perceived in Hill J’s distinction. Both of these cases are examples of a species of judicial discretion at practical work7 – but in a manner that does not conduce to certainty in the law. Kenyon LCJ and Best CJ more directly manifest their belief in the existence of judicial discretion at this state/church flashpoint,8 though they did not labour the point because the cases before them concerned legal professional

2 “[T]he tendency of the law must always be to narrow the field of uncertainty” (Holmes, OW, Jr, The Common Law, Howe M De W, editor, Cambridge Massachusetts, Harvard University Press, 1963, p. 101. However, Holmes also notes “that the law is always approaching, and never reaching consistency” (op cit, p. 32). 3 Judicial avoidance of religious confession privilege was discussed briefly in chapter four, pp. 109–112, in connection with In re Keller and R v Hay. Professor Elliott has observed that such avoidance in fact represents the exercise of a discretion. He wrote:

A discretion, in the strict sense of the word, is involved where a judge, having found that a rule covers the case before him, nevertheless decides it is not to be followed in the case. In a looser sense of the word, ‘discretion’ is also used where the judge is required to follow a rule if he finds that it applied (and is not able to disapply it), but where he is given considerable freedom in deciding whether it applies at all. Whether it applies or not depends on the judge weighing various factors against each other and how much weight he gives each factor and how he makes his mind up is largely for him (Elliott, DW, “An Evidential Privilege for Priest-Penitent Communications” [1993–1995] 3 Ecclesiastical Law Journal, 272, 274). 4 Garnet’s case (1606) 2 Howell’s State Trials 217. 5 R v Hay (1860) 2 Foster & Finlason 4, 7. 6 WF Finlason, Barrister, Middle Temple. 7 See note 3. 8 McNicol refers to “friction between church and state” (Law of Privilege, Australia, The Law Book Co. Ltd. 1992, pp. 330, 337) picking up the 1987 language of the Australian Law Reform Commission (A.L.R.C., Report No. 38 (1987), para. 212, p. 120).

Religious Communications Privilege at Common Law 125 privilege and did not require elaboration of an unrelated privilege or discretion. For example, in Du Barré v Livette,9 Kenyon LCJ said simply that he would “pause”10 before admitting the confessional evidence Buller J had allowed the previous year in R v Sparkes.11 What Kenyon LCJ meant by “pause” is not spelled out, but while he did not confirm an absolute immunity for confessional material, he did indicate the need to exercise some discretion when weighing the public interests which compete when it is sought to adduce confidential religious material at trial. Indeed, on his limited knowledge of the Sparkes facts as counsel had submitted them in Du Barré v Livette, it is difficult to escape the conclusion that Kenyon LCJ would have excluded that confessional evidence, even though the confession in that case was theologically irregular. Best CJ was apparently peremptory in his refusal to admit confessional evidence in R v Radford,12 as were the magistrates in R v Constance Kent13 and Ridley J in Ruthven v De Bour.14 Best CJ would not even allow the clergyman to speak of the issue and when he understood in 1828 that his course in Radford had been disapproved en banc in Gilham,15 he found a distinction to justify the exercise of the discretion he had exercised in Radford.16 Thus in Broad v Pitt,17 he confirmed the existence of a judicial discretion whether or not to allow the adduction of confessional evidence by reading Gilham as allowing a clergyman the right to waive his religious confession privilege – though neither his understanding of Gilham’s ratio, nor his distinction to restate the privilege, were necessary if he had read the Gilham report closely. The discretionary point is much less veiled in R v Griffin,18 where Alderson B made it clear that he had a discretion and that he was exercising it to exclude the workhouse chaplain’s evidence in that case. Though R v Griffin may not represent a strong ratio decision confirming a defined and inviolable religious confession privilege, it is certainly a ratio decidendi affirmation of the 9

Du Barré v Livette (1791) 1 Peake 108; 170 ER 96. Du Barré v Livette (1791) 1 Peake 108, 110; 170 ER 96, 97. 11 R v Sparkes (1790), but referred to in Du Barré v Livette (1791) 1 Peake 108; 170 ER 96. 12 R v Radford (1823) unreported but referred to in R v Gilham (1828) 1 Moody 186; 168 ER 1235. 13 R v Constance Kent (1865) unreported, but referred to in various places, including Attlay’s Famous Trials of the Nineteenth Century, 1899, p. 113; Nolan, RS, “The Law of the Seal of Confession”, Catholic Encyclopedia 13 (1913) 649, 658; Phipson, SL, Of the Law of Evidence by the late WM Best, 11th ed, London, Sweet & Maxwell, 1911, pp. 565–566; Tiemann, WH, and Bush, JC, The Right to Silence – Privileged Clergy Communication and the Law, 2nd ed, Nashville, Abingdon Press, 1983, pp. 117–119; Bursell, RDH, “The Seal of the Confessional” (1990) Ecclesiastical LJ 1(7) (1990) 84, 93 and in “Sacerdotal Privilege in English Law” (1956) 221 LTR 268. 14 Ruthven v De Bour (1901) 45 Sol. J. 272. 15 See discussion in chapter four, pp. 102–103. 16 Idem. 17 Broad v Pitt (1829) 3 Carr & P 518; 172 ER 528. 18 R v Griffin (1853) 6 Cox Cr Cas 219. 10

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existence of judicial discretion to exclude evidence of confidential clerical communications, since it is not clear that “these conversations”19 were confessional in character. Further, there can be no other interpretation of Alderson B’s qualification – “I do not lay this down as a general rule”20 – than that he was marking his decision as an exercise of judicial discretion that could be similarly exercised by other judges in future. However, there are other more recent cases which reaffirm Alderson B’s endorsement of such a discretion in cases involving confidential religious communications, though his authority is not cited in any of them, possibly because the judges in the later cases considered that the existence of such discretion was a self-evident principle. For example, Cockburn CJ in R v Castro21 two years before Sir George Jessel MR’s first statement against the privilege22 stated “that if a priest refused to disclose the subject matter of a confession, he would not be compelled to speak.”23 While the facts of the case do not amplify the meaning of the statement24 – and this statement was not even included in the Queen’s Bench report – the language of judicial discretion is unmistakable and recalls Best’s affirmation that “[he], for one [would] never compel a clergyman to disclose communications made to him by a prisoner.”25 In Normanshaw v Normanshaw 26, the existence of judicial discretion was dealt with in more detail. It will be remembered that this divorce case has been cited as authority against the existence of any religious confession privilege at common law.27 The vicar of Shirley had been called to provide details of his conversation with the respondent wife following her husband’s divorce petition on the ground of adultery, “but [the clergyman] objected to speak on the

19

Idem. Idem. 21 R v Castro (1873) 9 QB 219, 350. 22 Anderson v Bank of British Columbia (1876) LR 2 Ch D 644. 23 As quoted by Wigmore from the Chief Justice report of the case, since the quotation was not reported at Queen’s Bench – R v Castro (1874) (Tichbourne case) 2 Charge of Chief Justice 648 (Wigmore, JH, Evidence in Trials at Common Law, revised by John T McNaughton, Boston, Little Brown, 1961, Vol 8, p. 870). 24 The case concerned an allegedly fraudulent claim to a baronetcy and did not raise a question of religious confession privilege in any direct way. 25 Broad v Pitt (1828) 3 Carr & P 518, 519; 172 ER 528–529. 26 Normanshaw v Normanshaw (1893) 69 LTR 468 was discussed briefly supra in chapter four, pp. 109, 111. 27 For example, McNicol cites it as a scarce authority against a privilege “arising out of the priest-penitent relationship” at common law alongside Wheeler v LeMarchant (Law of Privilege, Australia, Butterworths, 1992, p. 324). Similar statements are made by Robilliard (“Religion, Conscience and Law” (1981) 32 Northern Ireland Legal Quarterly 358,359) and by the editor of The Law Times (“Sacerdotal Privilege in English Law” 221 LT 268). Stone and Wells also endorses this interpretation when they cite Normanshaw v Normanshaw as authority for the proposition that privilege does not extend to “sacramental confessions” (Evidence, Its History and Policies, Sydney, Butterworths, 1991, p. 586). 20

Religious Communications Privilege at Common Law 127 subject”.28 The jury found the adultery proven.29 Both Heydon30 and Bursell31 doubt that the case represents authority against the common law existence of religious confession privilege because it was clear before Jeune P insisted on an answer, that no sacramental confession had been involved. The clergyman nonetheless objected to giving evidence because “he had consulted friends on the subject, and they had all advised him not to divulge a private conversation with a parishioner”.32 Despite this explanation from the clergyman, Jeune P said that he must answer the questions,33 though there does not appear to have been any legal argument on the religious confession point. The report provides only a summary of the judge’s comments, but is helpful nonetheless. Following the clergyman’s objection, The President said that each case of confidential communication should be dealt with on its own merits, but, in the present instance, he saw no reason why the witness should not speak as to his conversation with the respondent.34

The report does not disclose whether a voir dire was conducted to assist Jeune P, in this determination,35 though since the clergyman was apparently unrepresented, it may be that the possibility of such a procedure was not even raised. The brief report thus leaves the impression that the witness was marginally hostile and the question of the admissibility of the clergyman’s evidence was discussed between judge and witness in open court. When he summed up, The President … observed that it was not to be supposed for a single moment that a clergyman had any right to withhold information from a court of law. It was a principle of our jurisprudence that justice should prevail, and no unrecognised privilege could be allowed to stand in the way of it.36

Though the report denies the existence of any evidential privilege connected with religious confidentiality,37 Jeune P’s earlier observation that “each case of 28

Normanshaw v Normanshaw (1893) 69 LTR 468, 469. Idem. 30 Heydon JD, Cross on Evidence, 6th Australian Edition, Sydney, Butterworths, 2000, p. 744. 31 Bursell RDH, “The Seal of the Confessional” (1990) 7 Ecclesiastical LJ 84, 94. 32 Normanshaw v Normanshaw (1893) 69 LTR 468, 469. 33 Idem. 34 Normanshaw v Normanshaw (1893) 69 LTR 468, 469. 35 Sir FH Jeune was serving as president of the Probate, Administration and Divorce Court at the time of this trial. In the absence of a voir dire, it is difficult to imagine how any judge could know enough of the reasons for a minister’s decision to withhold a confidence, to exercise his alleged discretion requiring it adduced as evidence or not. It is doubtful that such material would have been heard before the jury if there was a moot question hanging on the validity of its admissibility. 36 Normanshaw v Normanshaw (1893) 69 LTR 468, 469. 37 The absence of any indication of careful research and consideration of whether there was a religious confession privilege at common law in Normanshaw v Normanshaw is another example of a patterned judicial belief that it did not exist. Since it is not clear from the report whether Jeune P referred to any authority, his statement that the privilege did not exist, exists as a bald unsupported misstatement of fact. 29

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confidential communications should be dealt with on its own merits” suggests that he still believed a discretion to exclude the clergyman’s evidence was available to him. But it is not accurate to extract more from Jeune P’s comments than to point up the fact that he believed he had a discretion to exclude confidences as evidence in some undefined circumstances. For when the Reverend Linton did disclose what had passed between him and the respondent, it seemed that there had not been a confession at all. Rather, “there was a proposition that the respondent should go to a penitentiary, and, as he understood, she at first consented, but subsequently declined to do so.”38 While the reported conversation between this respondent and the clergyman may bear the implication that the respondent had committed some offence, else why would she have willingly consented to go to a penitentiary at all, there is no suggestion that she confessed a sin to this clergyman for any spiritual purpose, unless the clergyman was being precious in what he did eventually reveal to the court.39 Though any confession in issue was arguably non-sacramental,40 it seems that the clergyman sought only to protect a confidential religious communication with one who had sought his counsel and solace when in matrimonial difficulty – and the Judge did not feel that confidentiality was compelling enough to require it to be protected. Jeune P’s language allows the inference that a confidential religious communication with more ‘merit’ may have seen him exercise a discretion to exclude it as evidence. Whether a religious confession or a sacramental religious confession would have crossed Jeune P’s ‘merit’ threshold for exercise of discretion against admissibility as evidence on public interest grounds or otherwise, is likewise unclear. It is also possible that Jeune P considered that he had a discretion to exclude the conversation in Normanshaw on the different ground that it was a without prejudice communication focused on reconciling this couple because of the public interest in saving their marriage. As will be seen below, fifty years

38

Normanshaw v Normanshaw (1893) 69 LTR 468, 469. Note that both McNicol and the President of the Australian Law Reform Commission in 1987 have cited “clear evidence” (McNicol, op cit, p. 336) that “the clergy … will invariably assert the primacy of the spiritual as against the temporal … [so that] a law [requiring disclosure of confidential communications] will be totally unenforceable” (A.L.R.C., Report No. 38 (1987), para. 212, p. 120). It is thus possible that the clergyman was not entirely candid in what he disclosed to the court. 40 WP Finlason makes a case to effect that confession is a sacrament in the Church of England in his commentary/report of Hill J’s decision in R v Hay (1860) 2 Foster & Finlason 4, 8; 175 ER 933, 935. Some of the ecclesiastical commentators (supra, chapter three, pp. 113–114) deny that there exists a sacrament of confession in the Anglican Church. For example, Norman Doe says that “[t]he English Reformation led to the abandonment of obligatory private auricular confession, required under the pre-Reformation Roman canon law, as the norm” and that “[w]hilst churches commonly agree on the nature of the rite as effecting reconciliation with God, that it is a sacrament does not square with traditional Anglican thought” (Canon Law in the Anglican Communion, Oxford, Clarendon Press, 1998, p. 291). 39

Religious Communications Privilege at Common Law 129 later Denning J (as he then was41) believed that such a discretionary privilege existed in McTaggart v McTaggart,42 a case where he also made a passing obiter dicta comment about religious confidences. Twentieth century cases in England, Ireland and Canada since Jeune P decided Normanshaw have further explored his notion that “each case of confidential communication should be dealt with on its own merits”43 and have not always considered as he did in Normanshaw that the “interest of justice”44 was “prevalent”.45 Religious Communications Privilege Dicta in Twentieth Century Cases In McTaggart v McTaggart, the wife appealed because a “without prejudice” discussion in the presence of a probation officer endeavouring to reconcile the couple had been allowed as evidence by the Commissioner hearing competing petitions for divorce from both spouses. The appeal in days of ‘fault divorce’ appears premised on the wife’s dissatisfaction with the Commissioner’s acceptance of the husband’s version of the facts, which the disputed evidence favoured. Denning J made comment bearing upon religious communications privilege. He said: The rule as to “without prejudice” communications applies with especial force to negotiations for reconciliation … The probation officer has no privilege of his own in respect of disclosure any more than a priest, or a medical man, or a banker … [however] The law favours reconciliation and the court will not normally take upon itself a course which would be so prejudicial to its success. If a probation officer should be compelled to give evidence … it would mean that he would not be told the truth, or … the whole truth … In this case, however, neither party claimed the privilege and must, therefore, be taken to have waived it.46

This was not Lord Denning’s only statement about confidentiality in a case which did not involve a member of the clergy. As Master of the Rolls in 1963, Lord Denning enlarged his thinking on the issue of professional confidences and again made references to confidential communications with the clergy. Attorney-General v Mulholland and Foster47 was an appeal by two journalists

41 Alfred Thompson Denning was appointed to the House of Lords in 1957 “[b]ut … welcomed his transfer back to the Court of Appeal as Master of the Rolls five years later because, in a three-judge court, he needed only one ally to get a majority” (http://www.guardian.co.uk/ obituaries/story/0,,313455,00.html (last visited 11 July 2006). 42 McTaggart v McTaggart [1949] Probate 94. See also note 189. 43 Normanshaw v Normanshaw (1893) 69 LJR 468, 449. 44 Idem. 45 Idem. 46 McTaggart v McTaggart [1949] Probate 94, 97–98. 47 Attorney-General v Mulholland and Foster [1963] 2 QB 477.

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from a High Court finding of contempt because of their persistent unwillingness to answer relevant questions asked by a tribunal “set up to inquire into breaches of security in connection with spying offences”48 under the Official Secrets Act. The questions which Mulholland and Foster had declined to answer concerned the sources of their information and they defended themselves by saying that “a journalist has a privilege by law entitling him to refuse to give his sources of information … justifi[ed by] the pursuit of truth … in the public interest”.49 Lord Denning said: It seems to me that the journalists put the matter much too high. 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 his 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, a 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.50

While Lord Denning, like Jeune P before him in Normanshaw, denied the existence of any class privilege benefiting the clergy, like Jeune P he also said that a judge would respect the confidences of the clergyman as well as those of the medical man and the banker. That Lord Denning intended to identify the existence of judicial discretion in such cases is demonstrated by his response to counsel submissions made in relation to professional confidences in D v NSPCC.51 For in the English Court of Appeal’s hearing of that case, Lord Denning clarified what he meant. He said: where information is given in confidence to a clergyman, a medical man or a banker, the court will respect that confidence. It will not compel it to be disclosed, save in the last resort when it is relevant, proper, and indeed necessary in the course of justice.52

Even though all of the Law Lords disapproved of the generality with which Lord Denning had expressed the respect that courts would pay to confidences,53 they concurred with his dissenting Court of Appeal judgement in

48

Idem, the quotation is from the headnote. Attorney-General v Mulholland and Foster [1963] 2 QB 477, 489. 50 Attorney-General v Mulholland and Foster [1963] 2 QB 477, 489–490. 51 D v NSPCC [1978] AC 171. The House of Lord’s decision which affirmed Lord Denning’s minority decision in the Court of Appeal in this case is discussed in detail infra, pp. 132–141. 52 D v NSPCC [1978] AC 171, 191. 53 Lord Diplock said he felt “this House would be unwise to base its decision in the instant case upon a proposition so much broader than is necessary to resolve the case in issue … 49

Religious Communications Privilege at Common Law 131 the result by finding that the public interest in protecting the confidence in D v NSPCC justified the exclusion of the evidence in dispute. But Lord EdmundDavies went further and set out in detail the circumstances in which a court had a discretion to exclude confidential communications as evidence.54 Those principles are discussed below. Despite the nuanced differences in the reasons provided in the four separate judgements provided by the House of Lords55, they did agree that the public interest in protecting some confidences, did justify the exclusion of such confidential communications as evidence. It is also noteworthy once again, that because neither religious confession privilege nor any species of religious communications privilege was an issue in McTaggart, Mulholland and Foster or D v NSPCC, there was neither argument nor citation of any case on that subject in any of the judgements. However, even without discussion of the unique public interest factors that arise in a case involving religious confessions or confidences, even the careful approach of the House of Lords in D v NSPCC signals scope for some exercise of judicial judgement where confidentiality is weighed against public interest. This view resonates with the opinion of a line of English judges in cases that did have reason to consider religious confidences.56

A cautious judge expresses a proposition of law in terms that are wide enough to cover the issue in the case under consideration; the fact that they are not also wide enough to cover an issue that may arise in some subsequent case does not make his judgement an authority against any wider proposition” (D v NSPCC [1978] AC 171, 220). Lord Hailsham said “Lord Denning MR in his dissenting judgement … seeks to found the immunity upon this pledge. I do not think that confidentiality by itself gives any ground for immunity” (D v NSPCC [1978] AC 171, 230). After discussing Lord Denning’s opinion “in the instant case” and the view expressed by the English Law Reform Committee in their Sixteenth Report, Lord Simon said, “I do not think that the confidentiality of the communication provides in itself a satisfactory basis for testing whether the relevant evidence should be withheld” (D v NSPCC [1978] AC 171, 237). And Lord Edmund-Davies said that “the mere fact that information is imparted in confidence does not, of itself, entitle the recipient to refuse to disclose the identity of the informer” (D v NSPCC [1978] AC 171, 242). 54 D v NSPCC [1978] AC 171, 243, 244. Note too that Spigelman CJ said that Lord Edmund-Davies’ “expansive remarks” in D v NSPCC, “have not been adopted” where “public interest immunity” is concerned (R v Young (1999) 46 NSWLR 681, 694) though the view of Spigelman CJ itself is questionable (see infra, p. 36). R v Young is discussed in detail in chapter seven. 55 Lord Kilbrandon concurred entirely with Lord Hailsham and adopted his judgement. 56 That line begins with Chief Justice Kenyon’s judgement in Du Barré v Livette (1791) 1 Peake 108; 170 ER 96; is continued by Chief Justice Best in Broad v Pitt (1828) 3 Carr & P 518; 172 ER 528; expressed as ratio by Baron Alderson in R v Griffin (1853) 6 Cox Cr Cas 219, and implicitly concurred with by Jeune P in Normanshaw v Normanshaw (1893) 69 LTR 468, Ridley J in Ruthven v De Bour (1901) 45 Sol J 272, and the Chief Baron in Tannian v Synnott (1903) 37 Ir. L.T. 275. Gavan Duffy J in Cook v Carroll [1945] Ir. Rep 515 was much more explicit in his affirmation of a confidential religious communications principle in Ireland and did not see the question as a matter for the exercise of discretion. For him, religious communications were prima facie privileged.

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The final pure57 common law word upon judicial discretion to exclude confidential communications – and in particular, how such discretion is to be weighed and exercised by the Judge – is provided by the House of Lords in 1978 and particularly in Lord Edmund-Davies’ judgement in D v NSPCC. D v National Society for the Prevention of Cruelty to Children In this case, a mother, aggrieved by the NSPCC’s investigation of a complaint “about the treatment of her 14-month-old”58 daughter, “brought an action against the society for damages for personal injuries alleged to have resulted from the society’s negligence in failing properly to investigate the complaint”.59 Denying the negligence, the NSPCC made an application “for an order that there be no discovery … of any documents which revealed or might reveal the identity of the complainant on the grounds … that the proper performance by the society of its duties required that the absolute confidentiality of information given in confidence should be preserved … in the public interest”60 to prevent its sources of information drying up. At first instance, the Master ordered the relevant documents disclosed. On appeal, that order was reversed and then reinstated by a majority in the Court of Appeal (Lord Denning dissenting)61 before it was finally overturned by a unanimous decision in the House of Lords. Though the NSPCC did not assert that the confidential communication which they had received was privileged under any established head of privilege, the Society’s claim that their informers were entitled to public interest immunity on the same principles as applied in favour of police informants, extracted many statements about ‘privilege’ from both the Court of Appeal62

57 “Pure” in the sense that in the absence of any religious confession privilege statute, the English cases do not mix issues of statutory or constitutional interpretation in their considerations. 58 D v NSPCC [1978] AC 171. The quote is from the headnote. 59 Idem. 60 Idem. 61 The consensus of Lord Scarman and Sir John Pennycuick against Lord Denning in the Court of Appeal allowing the mother’s discovery of the evidence, was that the only public interest that could legitimately prevent disclosure was a State interest (ibid, pp. 197, 201). Though the House of Lords noted that they agreed with Lord Denning in the result in the case, they did not accept his generalised proposition that “the courts should not allow confidences to be lightly broken” (ibid, p. 220, see note 53 supra. Lord Denning however seems to have seen himself as merely elaborating the principle he had outlined in Attorney-General v Mulholland and Foster in 1963 when he had said “the court will respect … confidence [and] … will not compel it to be disclosed, save in the last resort when it is relevant, proper, and indeed necessary for the course of justice” (ibid, p. 191). 62 For example per Lord Denning (D v NSPCC [1978] AC 171, 192–193); per Scarman LJ though he denied that priests could invoke the public interest to protect their confidences (ibid, pp. 198–199) and per Sir John Pennycuick (ibid, pp. 200–203).

Religious Communications Privilege at Common Law 133 and House of Lords63 before public interest immunity was finally affirmed in favour of the NSPCC. Those close comparisons and particularly the observation that the categories of public interest immunity are never closed,64 indicate that there is an increasing degree of conflation of public interest immunity and privilege, particularly since the High Court of Australia has also recently described legal professional privilege as “an important common law immunity”,65 a “fundamental right”,66 a “common law right”67 and even perhaps as a “fundamental human right”.68 While public interest immunity and privilege are distinct concepts and have discrete historical origins,69 the reasoning in D v NSPCC manifests that future consideration of a broad discretionary confidential religious communications privilege will certainly include consideration of the competing public interest factors that are an established part of judicial decision making in public interest immunity cases. Concerning topical allegations of child abuse as it does, not only does the decision in D v NSPCC provide insight into authoritative English judicial attitudes about confidential relationships, it also practically signalled the House of Lords’ commitment to the public interest in protecting children.70 In this 1970s case, however, the public interest which outweighed the mother’s interest in knowing the evidence against her and the identity of her accuser, was the public interest in protecting the confidentiality promised to the NSPCC’s informants. However, that public interest was justified by analogous comparison to the established privilege that protected police informants71 rather than on the express ground that such confidentiality was necessary to protect

63

For example, Lord Diplock said that “ ‘public interest’ as a ground for withholding disclosure of documents or information was but another term for what had … been called ‘Crown privilege’ ” (ibid, p. 220); Lord Hailsham of St. Marylebone observed in a conflationary way, “[t]hese questions are all manageable if the categories of privilege from disclosure and public interest are considered to be limited” before doubting a “rigid distinction … between privilege and public interest”, and finding that the categories of public interest immunity are not closed (ibid, pp. 225–227, 230) and Lord Simon of Glaisdale analogised between the existence of legal professional privilege demanded by virtue of the public interest in the administration of justice and the public interest that demanded that the informant’s evidence be protected from disclosure in this case (ibid, pp. 231–233). 64 Per Lord Hailsham of St. Marylebone, ibid, p. 230. See also Lord Simon, ibid, pp. 236, 241. 65 Daniels Corporation v ACCC (2002) 192 ALR 561, 563–564 para 11 per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 66 Ibid, p. 49, para. 44, per McHugh J. 67 Ibid, p. 65, para. 132, per Callinan J. 68 Ibid, p. 56, paras 85–86, per Kirby J. 69 See chapter seven, infra, pp. 198–204. 70 For example. Lord Hailsham spoke of Crown’s concern as parens patriae for the welfare of children and the need to protect them from “maltreatment by adults” (D v NSPCC [1978] 171, 228). Lord Simon referred to the Crown’s parens patriae jurisdiction and a line of statutes aimed at protecting children and said “all this attests beyond question a public interest in the protection of children from neglect of ill-usage” (ibid, p. 240). 71 D v NSPCC [1978] AC 171. Per Lords Diplock, Hailsham, Simon and Kilbrandon at pp 172, 218–219, 229–230, 232, 242.

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mechanisms established by the legislature to protect children from abuse. In the twenty-first century, it is doubtful that the public interest would protect an alleged paedophile’s confidence in his priest absent the existence of a statutory religious confession privilege or recognition of the existence of that same privilege at common law. One suspects that in such a case, the public interest in child protection would trump the public interest in protecting a confidential religious communication with a member of the clergy. The Lords’ analogical use of police informant privilege to found a public interest immunity for NSPCC informants, also points up the fact that it may be easier for the crown to make a public interest immunity claim than for the defence in a criminal case. For the identification of the NSPCC as a quasi-statutory body72 provided a connection which enabled the Lords to draw on public interest immunity authority to narrow the pure confidentiality rationale upon which Lord Denning had relied to protect the informant in the Court of Appeal. Though it seems unsatisfactory to suggest that the exercise of judicial discretion to exclude evidence might turn on whether it was asserted by the crown or the defence, defensive assertions of public interest immunity made on behalf of private individuals will not have the same convincing power as those made on behalf of state prosecuting agencies. For Lord Diplock in D v NSPCC, it was “the general public interest that in the administration of justice truth will out”73 that trumped the mother’s interest in knowing all the evidence. For him, only the “rule of law” that enabled a defendant in a criminal trial to have “disclosure of the identity of the informer … to show that the defendant was innocent of the offence”74 would have trumped the NSPCC informant’s immunity. But the mother in D v NSPCC was not charged with a criminal offence and accordingly the public interest immunity claimed for the informant was justified by analogy to police informant privilege. As will be seen in chapter seven, it was the fact that the party seeking disclosure of the confidence in R v Young75 was the defendant in a criminal case seeking to defend himself by testing the credibility of his accuser, that saw the public interest justification for sexual assault communications privilege fail in that case. Lord Simon also implied that the informant’s privilege in D v NSPCC would have failed if it was challenged by the defendant in a criminal case. However, he said the reason why the public interest immunity

72 Lord Hailsham made this point most explicity when he said that since the NSPCC was the only body that could bring case proceedings, it had “[t]o that extent … been charges with the performance of public responsibility by the Home Secretary under the direct authority of an Act of Parliament” (D v NSPCC [1978] AC 171, 228–229). Lord Diplock’s identification of the NSPCC as carrying out public functions was set out in the first full page of his judgement (ibid, pp. 215–216). Lord Simon said that the NSPCC had been statutorily recognised and had succeeded to part of the Crown’s historic role as parens patriae to children (ibid, p. 240). 73 Ibid, p. 218. 74 Idem. 75 R v Young (1999) 46 NSWLR 681.

Religious Communications Privilege at Common Law 135 claim would fail in such a case, was because “[t]he public interest that no innocent man should be convicted of crime is so powerful that it outweighs the general public interest that sources of police information should not be divulged”,76 not simply because it had become a “rule of law”77 as Lord Diplock had suggested. Though such ‘rules of law’ may have originated because of the countervailing public interests that first justified them, it is noteworthy from the High Court of Australia’s confirmation of the status of legal professional privilege in Daniels v ACCC,78 that judges do not feel a large need to so justify them once they have been characterised as ‘common law rights’ or even as ‘fundamental human rights’.79 For both Lord Hailsham and Lord Simon, the primary justification which allowed the informant’s privilege in D v NSPCC was not the analogy to police informant privilege, but rather the fact that the categories of public interest immunity were not closed. Lord Simon, however, said that the judge was not only entitled to rule on the admissibility of evidence “as a matter of law and practice”,80 but that a judge could also effectively exclude evidence by what he called the “exercise … [of] considerable moral authority on the course of a trial”,81 as for example by suggesting that counsel not press a particular question “in the circumstances”.82 Though Lord Simon said that this approach meant that it was law and not discretion that was “in command”,83 there remains a sense in which it is judicial discretion that achieves the exclusion of such evidence. For if the judge concerned decided instead to say nothing disapproving of counsel’s line of questioning, the exercise of ‘moral authority’ would not see counsel drop the line of otherwise relevant questioning. Though such an approach does not advertise itself as the exercise of judicial discretion, it clearly operates to avoid the necessity of formal precedential rulings on evidence admissibility in criminal cases. Indeed, both Baron Alderson’s success in having the prosecutor drop the line of questioning which would have required disclosure of the workhouse chaplain’s evidence in R v Griffin84, and Lord Coleridge’s observation that Karslake, the prosecutor in R v Constance Kent was too much the gentleman barrister to press similar questions,85 are

76

D v NSPCC [1978] AC 171, pp. 232–233. See notes 73 and 74 and supporting text. 78 Daniels Corporation v ACCC (2002) 192 ALR 561; (2002) 77 ALJR 40. This case is discussed in detail in chapter seven. 79 See notes 65–68 and supporting text. 80 D v NSPCC [1978] AC 171, 239. 81 Idem. 82 Idem. 83 Idem. 84 R v Griffin (1853) 6 Cox Cr Cas 219. 85 Coleridge, EH, Life and Correspondence of John Duke Lord Coleridge Lord Chief Justice of England, London, William Heinemann, 1904, Vol 2, p. 365. See also Tiemann, WH, and Bush, JC, The Right to Silence – Privileged Clergy Communication and the Law, 2nd ed, Nashville, Abingdon Press, 1983, p. 119. 77

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clear examples of the judicial approach at which Lord Simon was pointing. But it is hard to see that the result was achieved other than as an exercise of a species of judicial discretion. After the other three judgements in D v NSPCC are analysed, it is apparent that Lord Edmund-Davies tried to synthesise a framework that might guide judges called upon to exercise discretion in cases involving both confidentiality and public interest in the future.86 And though Chief Justice Spigelman in the NSW Court of Appeal has suggested that what he called Lord EdmundDavies’ expansive remarks have not been adopted,87 collectively the judgements in D v NSPCC remain the last word on public interest immunity in the British common law world to the present day. For example. Geoghegan J delivering judgement for the Irish Supreme Court in final appeal in December 2005 in Howlin v The Hon. Mr Justice Morris88 referred to the Tribunal’s “endorse [ment of] a view I had taken as a judge in the High Court … [when] I had adopted the view of the House of Lords in D v NSPCC [1978] AC 171 and in particular the views expressed in the speech of Lord Edmund-Davies”.89 It is also noteworthy that various members of the High Court of Australia cited D v NSPCC with approval in Baker v Campbell in 198390 as did various members of the House of Lords in Ashworth Security Hospital v MGN Limited in 200291. Though indeed most of the references to the decision in D v NSPCC have not been specific to the judgement of Lord Edmund-Davies, he was only one of four of the five judges in the case who confirmed that the categories of public interest immunity were not closed.92 Before Lord Edmund-Davies commenced his effort to provide “a comprehensive and coherent pattern on this branch of the law”,93 he signalled that intention with his observation that the law could only “be altered … by a decision of this House, in a suitable case raising the issue, or by the

86 While Lord Simon did not characterise his extensive summary of the development of the law surrounding privilege and public interest immunity as an endeavour to provide such an analytical framework, he observed that there had “been three attempts to impose a comprehensive and coherent pattern on this branch of the law” and he confided that he had “great sympathy with that object” (D v NSPCC [1978] AC 237). 87 R v Young (1999) 46 NSWLR 681, 694. 88 Irish Supreme Court, 121 & 139/04, http://www.courts.ie/judgments.nsf/GenericPrint? OpenForm&id=0.8352830417726089, last viewed 2/06/2006. 89 Ibid, p. 6. 90 Baker v Campbell (1983) 153 CLR 52. 91 Ashworth Security Hospital v MGN Limited (2001) All ER 991. 92 While only Lord Hailsham (with whom Lord Kilbrandon concurred) said expressly that the categories of public interest immunity are not closed (D v NSPCC [1978] AC 171, 230), Lord Simon prefaced his extensive summary of development of the law of privilege and public interest immunity with doubt of “the respondent’s argument that there is a closed number of unextendable categories of relevant evidence which may be withheld from forensic scrutiny” (Ibid, pp. 236–239). Lord Edmund-Davies himself clearly subscribed to that view as is demonstrated in the text which follows. 93 These words are those of Lord Simon (D v NSPCC [1978] AC 171, 237).

Religious Communications Privilege at Common Law 137 legislature”.94 Though his judgement would undoubtedly have exerted more authority in the development of the law with regard to public interest immunity if his was the only judgement delivered by the House of Lords in D v NSPCC, it will be observed that his remarks say very little more than the other judgements in the case. After quoting the same Lord Denning’s comments in Attorney-General v Mulholland and Foster95 that I have quoted above,96 Lord Edmund-Davies disposed of plaintiff counsel’s argument that it was “no longer right to say ‘that the only profession … which is given a privilege from disclosing information to a court of law is the legal profession’ ”,97 with citations to Phipson, Cross and Halsbury to effect that “the[se] writers [were] unanimous that only in the case of lawyers and their clients [was] the court … empowered”98 to protect a confidential communication with privilege. Though he noted paragraph 51 of the Sir Rupert Cross Chaired English Criminal Law Revision Committee’s Eleventh Report on Evidence in 1972 which proposed “that a judge is entitled to direct a doctor not to disclose information regarding his patient’s health”,99 he rejected that proposition as being contrary to law.100 He then stated that there was no judicial discretion to direct evidence not be given simply because the parties to the communication were in a confidential relationship. If the evidence concerned was both relevant and necessary “for the attainment of justice in the particular case” even a doctor or a priest must be compelled to provide such evidence if “the advocate persists in seeking disclosure”101 despite the efforts to the judge to dissuade the advocate from that course.102 But he continued and spelled out where and how a judge 94 D v NSPCC [1978] AC 171, 245. In observing the precedential rule that only the House of Lords could make a precedential finding that could authoritatively alter the law or sets its future direction, Lord Edmund-Davies implicitly explained why Lord Denning had been unable to do that in the English Court of Appeal with his simple ‘confidentiality principle’. Not only was that principle much too broad, but even a repeated minority judgement in the English Court of Appeal could not achieve that result by itself. Spigelman CJ made a similar point in R v Young ( (1999) 46 NSWLR 681, p. 698, para 84, and p. 700, para 91) when he observed that it was not open to an intermediate Court of Appeal in Australia to so amend the law. 95 Attorney-General v Mulholland and Foster [1963] 2 QB 477, 489–490. 96 Supra, p. 130. 97 D v NSPCC [1978] AC 171, 244. Note too that the quote from Lord Denning in McTaggart v McTaggart (supra, p. 188) affirmed his view that only the legal profession had a privilege in respect of disclosure, though the mother’s counsel in D v NSPCC clearly sought to cite Lord Denning as authority for the proposition that “it was no longer right to say that the only profession which is given a privilege from disclosing … is the legal profession”. That bald proposition was clearly taking Lord Denning’s dissenting generalisations about confidentiality in Mulholland and Foster (criticised by Lord Diplock in the House of Lords as “much broader than necessary” (D v NSPCC [1978] AC 171, 220) ) – further than even Lord Denning seems to have intended. 98 Idem. 99 Idem. 100 Lords Hailsham (ibid, p. 227) and Simon (ibid, p. 237) also noted the Criminal Law Revision Committee’s 1967 report, but doubted the NSPCC submission that the judiciary has so wide a discretion as to permit a witness to refuse to disclose evidence, as was suggested. 101 D v NSPCC [1978] AC 171, 245. 102 Idem.

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might exercise his discretion to find evidence protected on grounds of public interest immunity. He said: (ii) But where (i) a confidential relationship exists (other than that of lawyer and client) 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. (iii) In conducting the necessary balancing operation between competing aspects of public interest, the presence (or absence) of involvement of the central government in the matter of disclosure is not conclusive either way though in practice it may affect the cogency of the argument against disclosure … (iv) The sole touchstone is the public interest, and not whether the party from whom disclosure is sought was acting under a “duty” – as opposed to merely exercising “powers”. A party who acted under some duty may find it easier to establish that public interest was involved than one merely exercising powers … (v) The mere fact that relevant information was communicated in confidence does not necessarily mean that it need not be disclosed. But where the subject matter is clearly of public interest, the additional fact … that to break the seal of confidentiality would endanger that interest will in most (if not all) cases probably lead to the conclusion that disclosure should be withheld … (vi) The disclosure of all evidence relevant to the trial of an issue being at all times a matter of considerable public interest, the question to be determined is whether it is clearly demonstrated that in the particular case the public interest would nevertheless be better served by excluding evidence despite its relevance. If, on balance, the matter is left in doubt, disclosure should be ordered.103

The congruence of Lord Edmund-Davies’ opinion with that of his brethren can be seen woven through the entire statement. Not only did he restrict its application to civil trials in an effort to accord with Lord Diplock’s principle that the decision in this case not be broadened further that “is necessary to resolve the issue between these parties”,104 he concurred with all of his brethren against Lord Denning’s statements in the Court of Appeal below that confidentiality alone does not invoke public interest immunity. He also acknowledged Lord Simon’s observation that a judge can exercise considerable moral influence on the course of a trial by dissuading counsel from persisting in certain lines of questioning;105 he confirmed that the involvement of government in the issue is not the only touchstone of public interest106; and he confirmed the need to weigh the competing public interests that arise. 103

D v NSPCC [1978] AC 171, 245–246. Ibid, p. 220. 105 Ibid, p. 239 per Lord Simon. 106 This principle may be seen in Lord Diplock’s judgement since he invoked an analogy to police informant privilege even though the NSPCC was a voluntary society (ibid, pp. 215–219). 104

Religious Communications Privilege at Common Law 139 However, even if it is accepted that Lord Edmund-Davies’ six points outlining the metes and bounds of a judicial discretion to exclude evidence in civil trials do capture the spirit of the judgements of his brethren, they are not particularly helpful in elucidating when such discretion might be exercised to protect a confidential religious communication. For while the decision confirms that NSPCC informants in England will likely be privileged from disclosure when competing public interests are judicially weighed,107 one senses that the countervailing public interest in a court’s having all the evidence will not be easy to displace. That Lord Edmund-Davies confined his six principles to civil cases108 is particularly problematic when one considers religious confidences since even the rare case reports that do exist suggest that such confidentiality is most likely to challenged in criminal cases. Valid concern may also be raised about the practical utility of the Edmund-Davies principles since they do not suggest what kinds of public interest and therefore what kinds of confidence are likely to attract court sympathy for an immunity argument in the future. This absence of guidance may be part of the learned Lord’s concession to Lord Diplock’s direction that the decision in D v NSPCC not be broadened beyond the facts of the case.109 But if that is so, then the decision confirms little more than that some form of judicial discretion exists in public interest immunity cases, but that so far only informants of the English National Society for the Prevention of Cruelty to Children have qualified for its exercise. While D v NSPCC thus provides limited analogical guidance, it is not surprising that the House of Lords were unwilling to suggest categories where public interest immunity might arise in the future. Though Lord Edmund-Davies had stated his view that the House of Lords did have the practical power to settle the law in this area,110 he conceded that unlike the legislature, the nation’s highest court required a suitable case to provide that opportunity. Even though the doctrine of precedent provides the House of Lords with a species of law making power, that power is not co-extensive with

It is also evident in the principle expressed by both Lord Hailsham and Lord Simon that the categories of public interest immunity are not closed (ibid, pp. 225–230 per Lord Hailsham and pp. 236–241). 107 However, it must be noted that even different cases involving the NSPCC will raise different competing public interests, so that the precedential value of the decision does not extend very far beyond its own precise facts. 108 Ibid, p. 245. It would appear that this concession was a recognition of Lord Simon’s caution against creating principles in the law of evidence without careful consideration of the different circumstances that arise in criminal cases. Lord Simon said “[e]ven though the rules of criminal evidence may differ in some respects from civil, any wide judicial discretion to admit or reject evidence should, I think, at least be tested against what would be acceptable in a criminal trial (ibid, p. 239). 109 D v NSPCC [1978] AC 171, 220. Lord Simon also made comments about the need for judicial circumspection in cases involving considerations of public policy (ibid, p. 240). 110 Ibid, p. 245.

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the law making power constitutionally vested in parliament. For under the strict doctrine of precedent, obiter dicta statements alone cannot bind the future. The House of Lords would require an actual case raising doctor/patient privilege or religious confession privilege before they could make statements about the public interests that would justify the recognition of public immunity in such cases. D v NSPCC was not such a case but the Lords did what they could with the material thus made available to settle the law in the area. They certainly rebutted Lord Denning’s idea that the existence of confidentiality alone provided the judge with discretionary power to exclude otherwise relevant evidence. Public interest factors would also have to weighed before any exercise of discretion was justified. Perhaps if the facts of D v NSPCC had set constitutional values like freedom of speech or conscience against some thin government assertion of confidentiality outside facts in wartime or following a recent terrorist attack, some further analogical help might have been forthcoming. But in nations without recorded and entrenched Human Rights legislation, there is a risk that even the constitutional values potentially raised in such cases, may be chilled or buried by the passion of a passing tide of public opinion. In the context of this thesis, the final problem with Lord Edmund-Davies principles is once again, his unquestioning acceptance of the assertions of Phipson, Cross and Halsbury that there is no privilege from disclosing information to a court of law outside the legal profession.111 For as this thesis has already demonstrated, that commentary is not accurate where religious confession privilege is concerned. Though Spigelman CJ in NSW has indicated that what he called Lord Edmund-Davies’ “expansive remarks”112 in D v NSPCC113 “have not been adopted”114 where “public interest immunity”115 is concerned, Lord Hailsham’s observation that “the categories of public interest immunity”116 are no more

111

D v NSPCC [1978] AC 171, 244. R v Young (1999) 46 NSWLR 681, 694. In the context of D v NSPCC, it is difficult to characterise Sir Edmund-Davies’ remarks as “expansive”, since he did not accept submissions of counsel for the complainant that the larger remarks of Lord Denning (in the Court of Appeal) should apply, and was rather narrower on discretion than even his brother Lord Hailsham in his concurring judgement in the same case. 113 D v NSPCC [1978] AC 171. See also notes 54 and 87 and the text supporting note 87. 114 R v Young (1999) 46 NSWLR 681, 694. Again see note 87 and the supporting text which suggests that Chief Justice Spigelman’s dismissive comments about Lord Edmund-Davies’ principles do not fairly recognise the degree to which those principles did capture the sentiments of his brethren who were unanimous in the result, or the acceptance those remarks have achieved in subsequent judicial consideration. 115 Idem. 116 D v NSPCC [1978] AC 171, 230. 112

Religious Communications Privilege at Common Law 141 closed than those of negligence, has struck a chord around the British Commonwealth. Writing as a law teacher at the Faculty of Law in the University of British Columbia,117 Beverley McLachlin as she then was118 referenced Wigmore’s “principle”119 approach in preference to a more conservative “category”120 approach to determine “the question of privileged communications”.121 She cited Turner J’s (as he then was122) approach to the issue in the NZ Supreme Court (as it then was123) in Bell v University of Auckland.124 “Referring to confidential communications between a university and its employee, he stated”:125 I cannot but think that this situation is one which, if the existing rules of privilege do not protect the documents from discovery, an addition should be made to the categories of documents regarded as privileged. The famous dictum of Lord Macmillan in Donoghue v Stevenson [1932] AC 562, 619; [1932] All ER Rep 1, 30, that “the categories of negligence are never closed” may serve as inspiration for a similar remark as to the categories of privilege.126

Though Lord Hailsham in D v NSPCC127 may have been familiar with this statement of Turner J in New Zealand, it is remarkable that two senior British Commonwealth judges within a decade of one another should choose the same generous analogy to express what they felt the common law on privilege and public interest immunity was or should be. The Canadian courts have developed this jurisprudence much further and McLachlin J, before her appointment as Chief Justice of Canada, has been a significant contributor in that development along the lines that she spelled out in her 1977 article.

117

McLachlin, B, “Confidential Communications and the Law of Privilege” (1977) 2 UBCL Rev 266. 118 McLachlin CJ was appointed to the Supreme Court of Canada on 30 March 1989 and was appointed Chief Justice of Canada on 7 January 2000 (http://www.scc-csc.gc.ca/about court/ judges/ McLachlin/index_e.asp) (last visited 28 July 2003). 119 McLachlin, B, op cit, p. 269. 120 Ibid, p. 268. 121 Idem. 122 “Alexander Turner (1901–1993) was a judge of the NZ Court of Appeal from 1962 to 1973 and during his last eighteen months served as President” (http://www.waikato.ac.nz/law/wlr/ 1993/article4-spiller.html). (last visited 28 July 2003). 123 The New Zealand Supreme Court was established in 1841 and was renamed the New Zealand High Court in 1980 (http://www.courts.govt.nz/courts/high_court.html). (last visited 28 July 2003). A new New Zealand Supreme Court, replacing the Privy Council as New Zealand’s highest court, was established by the Supreme Court Act 2003 to commence hearing cases from 1 July 2004. 124 Bell v University of Auckland [1969] NZLR 1029. 125 McLachlin, B, op cit, p. 269. 126 Bell v University of Auckland [1969] NZLR 1029, 1036. 127 D v NSPCC [1978] AC 171.

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Chapter Five Religious Communications Privilege in Twentieth Century Canadian Cases

Before the advent of the Canadian Charter of Rights and Freedoms128 and the Supreme Court’s decision in Slavutych v Baker,129 the Canadian common law with respect to religious confessions and religious communications more generally, was indistinguishable from the common law of England. However, the Supreme Court of Canada’s invocation of Dean Henry Wigmore’s “four fundamental conditions necessary to the establishment of a privilege against the disclosure of communications”,130 though not “carved in stone”131 has been sufficiently affirmed in subsequent decisions of that court132 to have made those principles part of the unique fabric of Canadian law. The particular relevance of the Canadian authorities in the twenty-first century when most nations will likely have respect to human rights jurisprudence, is the use made of constitutional materials.133 Additionally, the Canadian use of Wigmore’s four canons to develop a discretionary religious communications privilege, resonates with the less developed thread of authority in favour of discretionary public interest immunity in English common law authority traced earlier in this chapter. Though Spigelman CJ did not feel that the New South Wales Court of Criminal Appeal could similarly adopt the Wigmore canons in a case about the emerging sexual assault communications privilege,134 the Canadian reasoning is likely to be highly persuasive in a future confidential religious communications privilege case.

128 The Canadian Charter of Rights and Freedoms came into force as Schedule B to the Canada Act 1982 (UK) Clause 11 on 17 April 1982. In Canada it is known as the Constitution Act 1982. 129 Slavutych v Baker [1976] 1 SCR 254; (1975) 55 DLR (3d) 224 130 Ibid, p. 228. The Wigmore principles are: 1. The communications must originate in a confidence that they will not be disclosed. 2. The element of confidentiality must be essential to the full maintenance of a 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. 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 (italics original) (Wigmore JH, Evidence in Trials at Common Law, Revised by John T McNaughton, Boston, Little Brown, 1961, Vol 8, p. 527). 131 R v Gruenke (1991) 3 SCR 263, 290. 132 For example, the four Wigmore canons have been used as a tool to determine the availability of a confidentiality privilege in Reference Re Legislative Privilege (1978) 39 CCC (2d) 226; R v Big M Drug Mart Ltd [1985] 1 SCR 295; Re Church of Scientology and the Queen (No 6) (1987) 31 CCC (3d) 349 (Ontario Court of Appeal) and R v Gruenke [1991] 3 SCR 263. 133 The possible application of the Canadian jurisprudence in Australia in light of both the resonance in Canadian and Australian multicultural values and the similarity in protection afforded religious freedom under the Canadian Charter and section 116 of the Australian Constitution, are considered in chapter seven. 134 R v Young (1999) 46 NSWLR 681, 698, para 84. Note that while Spigelman CJ did not consider it was open to an intermediate Court of Appeal in Australia to adopt “the approach … propounded by Wigmore and adopted in Canada”, despite the fact that Beazley JA found that

Religious Communications Privilege at Common Law 143 In Slavutych v Baker135 Associate Professor Yar Slavutych of the Slavonic Languages Department of the Faculty of Arts of the University of Alberta136 had been “invite[d] to give a confidential assessment of a colleague … [to] determin[e] … whether the latter should be granted tenure”.137 When the university later used that communication “as a basis for a charge of misconduct justifying [Slavutych’s] … dismissal”,138 even though it had been made in good faith, Slavutych challenged his dismissal before the Appellate Division of the Supreme Court of Alberta and lost on grounds of public policy notwithstanding that court’s review of the Wigmore canons.139 But in the Supreme Court of Canada, Spence J, giving the judgement of the whole court, affirmed that Wigmore’s canons were not only appropriately reviewed to determine whether Slavutych was entitled to an evidential privilege in connection with his confidential communication with the university, but that in fact all four canons were satisfied in Slavutych’s case.140 Since the university’s board of arbitrators which approved the university president’s recommendation of dismissal had made no finding of bad faith at first instance and indeed had recommended “some lesser penalty”141 to the university, the equitable principle “that a person who had obtained information in confidence is not allowed to use it as a springboard for activities detrimental to the person who made the confidential communication”142 applied, and the award was quashed completely without need for arbitral reconsideration where its decision of dismissal was concerned.143 In Re Church of Scientology and the Queen (No 6),144 in rejecting Osler J’s ruling in the Supreme Court of Ontario that the Wigmore principles “recognized and adopted for some purposes by the Supreme Court of Canada in Slavutych v Baker … are not embraced by the [priest-and-penitent] privilege”,145 the Ontario Court of Appeal reaffirmed its acceptance of both the Wigmore canons and the parallel constitutional protection afforded by the new Charter of Rights and Freedoms with these words:

approach attractive (R v Young (1999) 46 NSWLR 681, 715–716), Lord Simon cited Wigmore’s canons of privilege with approval in D v NSPCC ([1978] AC 171, 237). 135 Slavutych v Baker [1976] 1 SCR 254; (1975) 55 DLR (3d) 224. 136 Ibid, p. 225. 137 Ibid, p. 224. 138 Idem. 139 Ibid, p. 228. 140 Ibid, p. 229. 141 Ibid, p. 231. 142 Ibid p. 230, Spence J quoting Lord Denning MR in Seager v Copydex Ltd [1967] 2 All ER 415, 417 who was in turn adopting the statement of Roxburgh J in Terrapin Ltd v Builder’s Supply Co (Hayes) Ltd et al [1960] RPC 128, 130. 143 Ibid, p. 233. 144 Re Church of Scientology and the Queen (No 6) (1987) 31 CCC (3d) 349. 145 Ibid, p. 536.

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Chapter Five We agree with the Crown that … there is no recognized class privilege accorded to the priest-and-penitent relationship … We cannot agree, however, that it is too late to expand the modern law of privilege. In the light of the constitutional protection given by the Charter and having regard to the expansion of the law of privilege under the general principles enunciated by Dean Wigmore and accepted by the Supreme Court of Canada in Slavutych v Baker, … we are satisfied that our courts will be encouraged to recognize the propriety of a priest-and-penitent privilege, if not as a class, at least on a case-by-case basis.146

While these statements rank only as obiter dicta, since the appeals against the issue of the search warrants in issue were all dismissed, this statement signals a clear direction in Canadian judicial thought,147 since reaffirmed and developed by the Supreme Court in R v Gruenke148 which is regarded as the leading case not only on religious communications privilege, but on privilege generally. R v Gruenke Adele Gruenke had unsuccessfully appealed her first degree murder conviction to the Manitoba Court of Appeal. When unsuccessful, she obtained leave to further appeal to the Supreme Court of Canada on the basis that either her communications with two pastors in the Victorious Faith Centre were “protected by common law privilege, or alternatively, were protected confidential communications, and therefore inadmissible, under the common law and s 2(a) of the Canadian Charter of Rights and Freedoms”.149 Though the Full Supreme Court of nine judges concurred in their decision that the appeal should be dismissed, they divided over the reasons for that dismissal. Lamer CJ delivered the judgement of the seven judges who affirmed the existence of

146

Ibid, p. 541. In an unreported Supreme Court of Ontario case (filed in Ontario Judgements Quicklaw Database as R v Medina [1988] OJ No 2348), Campbell J observed that despite the Ontario Court of Appeal finding in the Scientology case (following Jessel MR’s obiter observations against the privilege in Wheeler v LeMarchant (1881) 17 ChD 675, 681) that “[t]here … was at common law, no privilege in communications to clergyman” (R v Medina [1988] OJ No 2348 p 4 quoting the Scientology case at p. 537) ), “that was … not the universal position [as] [s]ome judgements seem to recognize a priest-penitent or clergy and parishioner privilege in, or at least a discretion to exclude, communications made for purposes of spiritual guidance and comfort” (R v Medina, idem). Campbell J then went on in Medina to find that it was “open to the accused to resist the admission into evidence against him of [a] … statement to his clergyman on the ground of religious privilege” (R v Medina, p. 5) on a “case-by-case basis” (idem) applying “the general principles set out in Wigmore” (idem). Though he found Medina had not made out such a case since the fundamental reason for his communication on the street with a pastor was to solicit his help in fleeing the city and the country to avoid a murder charge, he did believe that a religious privilege did exist on a case-by-case basis, applying the general Wigmore principles. 148 R v Gruenke [1991] 3 SCR 263. 149 Ibid, p. 264. 147

Religious Communications Privilege at Common Law 145 a religious communications privilege on a case-by-case basis.150 L’HeureuxDubé J delivered the alternative view151 that maintained there was a religious communications class privilege in Canada but that, nonetheless, it did not protect Gruenke’s communications with her pastors in this case because these communications “did not originate in the confidence that they would not be disclosed”.152 The Supreme Court’s recitation of the facts accepted that Ms Gruenke had already decided “to turn herself into the police and ‘take the blame’ ”,153 and that her communications with her pastors were more “accurately described … as being made to relieve Ms Gruenke’s emotional stress than for a religious or spiritual purpose”.154 The Court’s division essentially boiled down to the question of whether the Supreme Court should recognise a new class or category of privilege in favour of confidential religious communications, or whether the admissibility of evidence in cases of confidential religious communications should be resolved on some discretionary ‘case-by-case’ basis. Lamer CJ provided the judgement of the majority which set out the approach which Canadian courts should take to determine whether they should exercise a discretion to protect any confidential communication from disclosure. Because the case concerns a confidential religious communication and because it has also become the leading case concerning the admissibility of confidences as evidence in Canadian courts, the reasoning is set out in some detail. Lamer CJ’s judgement confirming what was called a ‘case-by-case privilege’, first dealt with the arguments that been presented by counsel for Gruenke to prove the existence of a religious communications privilege at common law. He agreed that while “English and Canadian courts have not, as a matter of practice, compelled members of the clergy to disclose confidential religious communications, this does not answer the question of whether there is a legal common law privilege for religious communications”.155 Lamer CJ also rejected the odd suggestion from counsel for Gruenke that “the existence of a limited statutory religious privilege in [Quebec and Newfoundland] indicate[d] … that a common law privilege exists”.156 Logically, Lamer CJ observed that “[i]f

150

Lamer CJ and La Forest, Sopinka, Cory, McLachlin, Stevenson and Iacobucci JJ. Gonthier J concurred in L’Heureux-Dubé J’s judgement. 152 Ibid, p. 316. 153 Ibid, p. 292. 154 Idem. 155 Ibid, pp. 287–288 per Lamer CJ. Note that the facts of the Gruenke case did not allow the Canadian Supreme Court to consider closely the existence of a narrower religious confession class privilege at common law, since it was not suggested at any of the trials (first instance in Manitoba, appeal in Manitoba, or final appeal to the Supreme Court) that the communication which had taken place was a religious confession. 156 Ibid, p. 288. 151

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anything … [such need for statute] indicate[d] that the common law did not protect religious communications”.157 Lamer CJ then turned to the reasons which could justify a confidential religious communications privilege and considered that “the question of whether a prima facie privilege exists for religious communications is essentially one of policy”.158 In his view, unless compelling policy reasons such as underlie “the class privilege for solicitor-client communications”159 could be shown, “there [was] … no basis for departing from the fundamental ‘first principle’ that all relevant evidence is admissible until proven otherwise”.160 Proponents of a religious communications privilege could not call in aid the policy reason which was accepted as underlying “prima facie protection for solicitor-client communications”.161 That privilege was justified by the fact that those communications were essential “to the effective operation of the legal system … [since s]uch communications are inextricably linked with the very system which desires the disclosure of the communication”.162 But, ‘the effective operation of the legal system’ was not the only policy reason that could justify a privilege. Though confidential religious communications were “not inextricably linked with the justice system in the way that solicitor-client communications surely are”,163 the social importance of confidential religious communications was implicit in the value placed upon freedom of religion in s.2(a) of the Canadian Charter of Rights and Freedoms. However, it was not necessary that “a prima facie privilege [be recognized] to give full effect to the Charter guarantee”.164 Since “[t]he extent (if any) to which disclosure of communications will infringe on an individual’s freedom of religion will depend on the particular circumstances involved”,165 principled consideration, “on a case-by-case basis, having regard to the Wigmore criteria … [was consistent with] the approach taken by this Court in Slavutych v Baker”166 and the Ontario Court of Appeal in Re Church of Scientology and the Queen (No 6). He continued and explained that while “the Wigmore criteria are [not] … ‘carved in stone’, they provide a general framework within which policy 157 Ibid, p. 288. This view that the need for the creation of a statutory privilege may have proved the non-existence of religious confession privilege at common law is further discussed in chapter six, pp. 242–246. 158 Idem. Note that though the House of Lords’ decision in D v NSPCC was not referred to anywhere in the Supreme Court of Canada’s decision in R v Gruenke, public policy is recognised as the primary guide in identifying new evidentiary privileges or immunities in both decisions. 159 Idem. 160 Idem. 161 Ibid, p. 289 per Lamer CJ. 162 Idem. 163 Idem. 164 Idem. 165 Idem. 166 Idem.

Religious Communications Privilege at Common Law 147 considerations and the requirements of fact-finding can be weighed and balanced on the basis of their relative importance in the particular case before the court”.167 Such judicial use of the Wigmore criteria did not “preclude the [future] identification of a new class [privilege] on a principled basis”,168 but the recognition of a new religious communications class privilege was not necessary since case-by-case consideration would allow Canadian courts to weigh the freedom of religion considerations arising under the Charter.169 Lamer CJ said that use of “the general term ‘religious communications’ [was preferable] … [to] the more traditional term ‘priest-penitent communication’ ”170 because it recognised the need for the accommodation of a wide variety of beliefs and accordingly, the non-denominational approach sensitively desirable in Canada’s multi-cultural jurisdiction.171 “The fact that the communications were not made to an ordained priest or minister or that they did not constitute a formal confession will not bar the possibility of the communications being excluded”.172 Lamer CJ summed up with the observation that because “Ms Gruenke’s communications to Pastor Thiessen and Ms Frovich did not originate in a confidence that they would not be disclosed … the communications in question [did] not satisfy the first Wigmore criterion and their admission into evidence [did] not infringe Ms Gruenke’s freedom of religion”.173 In essence, the Supreme Court of Canada recognised that confidential religious communications may be privileged from compulsory disclosure in court out of respect to that nation’s multicultural values, which are enshrined in the 1982 Charter of Rights and Freedoms. Such privilege will not protect every religious communication and indeed did not protect the communications in the Gruenke case. Against the constitutional law backdrop provided by the Charter, Canadian judges are at liberty to weigh competing policy considerations that arise on the facts in individual cases. It is possible to identify a measure of congruence between this Canadian approach and that set out in the House of Lords judgements in D v NSPCC. For in both decisions, there is a recognition that public interest or policy considerations should dictate the exclusion of some confidences not protected by the existing privilege or immunity categories acknowledged in the text books. But there is a marked reluctance to recognise new classes or categories of privilege when appropriate exercise of discretion can meet the purpose. But not all the judges in the Supreme Court of Canada agreed. 167 168 169 170 171 172 173

Ibid, p. 290 per Lamer CJ. Idem. Idem. Ibid, p. 291 per Lamer CJ. Idem. Idem. Ibid, p. 292 per Lamer CJ.

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L’Heureux-Dubé and Gonthier JJ worried that the Supreme Court’s failure to recognise confidential religious communications as a category would have “a chilling effect on the spiritual relationship”174 in Canadian society. This failure unnecessarily focused “on the palpable need for evidence in the individual case and … neglect[ed] more intangible and long-term interests”.175 The minority judgement found several public interest factors beyond the Charter protection of freedom of religion176 that justified recognition of confidential religious communications as a distinct class of privilege. This included “Society’s Interest in Promoting Religious Communications”,177 “Privacy Interests”178 and the fact that “[c]ompelling disclosure … may arguably bring disrepute to the system of justice”.179 While they did not believe “that every communication between pastor and penitent will be protected”,180 L’HeureuxDubé and Gonthier JJ considered it desirable to recognise religious confession privilege as a “class” privilege to avoid the danger of social prejudice where recognition of religious communications privilege was characterised as a mere discretion. However, the majority view of the court directed that assertions of privilege for any form of confidential religious communications should be assessed in accordance with the Wigmore principles181 in the future. The individual judge should weigh society’s interest in the confidentiality against the normal requirement that the court should hear all the evidence. While the existence of a narrower religious confession privilege may still seem moot in Canada182 absent a decision considering a formal sacramental confession, it is unlikely the need for such a category will appear in future since judicial discretion is likely to be exercised in favour of the most formal confessions. Though the English reasoning in D v NSPCC is different in a case that did not involve a religious communication, both English and Canadian courts have now stated that judicial discretion is the appropriate way to assess the complex public interests that arise when it is asserted that confidences should trump the court’s need for all the evidence. Irish jurisprudence, however, has concluded that a class privilege favouring religious communications was necessary to protect the public interests involved.

174

Ibid, p. 311. Idem. 176 Ibid, pp. 300–302. 177 Ibid, pp. 297–300. 178 Ibid, pp. 302–303. 179 Ibid, p. 304. 180 Ibid, p. 312. 181 The Wigmore principles are set out in full in note 130. 182 Again, note Lamer CJ’s statement that the principled case-by-case approach to such assertions of privilege, did not “preclude the identification of a new class on a principled basis” in the future (ibid, p. 290). See also note 168 and supporting text. 175

Religious Communications Privilege at Common Law 149 Religious Communications Privilege in Twentieth Century Irish Cases Though the existence of any privilege, discretionary or otherwise, was discountenanced very early in Ireland,183 the view of the evidence scholar WM Best that such dismissive treatment may have reflected judicial religious prejudice seems to have eventually prevailed.184 For though the judges in In re Keller185 seemed to go to great lengths to avoid both the religious confession privilege and religious communications privilege issue in that case, both privileges may be said to have survived that episode and to have been confirmed, most memorably by Gavan Duffy J in Cook v Carroll.186 In an action for damages for seduction brought by the girl’s mother against the alleged seducer, the Reverend WJ Behan, who was parish priest to both parties, was called to give evidence of a discussion that took place at a meeting between the three of them as he endeavoured either to “induc[e] … the girl to withdraw a false charge, or [to] persuad[e] … the man to make amends for the wrong done to her”.187 In the Circuit Court, the priest was fined £10 for contempt as a result of his refusal to give evidence and “the plaintiff ’s action was dismissed”.188 On appeal, the priest again refused to give evidence, with the following statement: I respectfully decline to give evidence. I cannot conscientiously do so, because any information I have, was given to me as a parish priest. When parishioners come to consult the parish priest, what they tell the priest is given on the understanding of secrecy and should not be revealed under any circumstances.189

Father Behan’s demurrer raises the issue of a religious communications privilege rather than a narrower religious confession privilege. Both parties waived privilege at the trial,190 so that the priest’s continuing assertion of a personal

183 Butler v Moore (1804–1806) 2 Sch & Lef 249. Discussed supra in chapter four, pp. 114– 115, and in chapter six, pp. 161–163. 184 Best, WM, A Treatise on the Principles of Evidence, London, S Sweet, 1849, pp. 459–460. See also SL Phipson’s revision of his work in the eleventh edition, Best’s Law of Evidence, Sweet & Maxwell, 1911, pp. 561–562. 185 In re Keller (1887) 22 LR Ir. 158, discussed in chapter four, pp. 109–111. 186 Cook v Carroll [1945] Ir. Rep. 515. 187 Cook v Carroll [1945] Ir. Rep. 515, 516. 188 Cook v Carroll [1945] Ir. Rep. 515. 189 Cook v Carroll [1945] Ir. Rep. 515, 516. Note that Gavan Duffy J need not have decided the case by confirming the existence of a religious communications privilege in Ireland. He could have decided, as Denning J did four years later in McTaggart v McTaggart [1949] Probate 94, that these communications were protected as without prejudice communications which were protected because of society’s interest in preserving marriage. Such a course was identified and approved by the House of Lords in D v NSPCC [1978] AC 171 (per Lord Hailsham, pp. 226–227; per Lord Simon pp. 236–237, and per Lord Kilbrandon who concurred with Lord Hailsham). 190 Idem.

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privilege stood uncomplicated191 and on its own. As the Supreme Court of Canada would later do in R v Gruenke, Gavan Duffy J reviewed the historical evidence for the existence of a religious communications privilege. He concluded “that the seal of confession was respected in the courts of England before the Reformation”,192 but that “the attitude of pre-Reformation courts towards any wider claim [of privilege] by a priest is probably unascertainable today”.193 He observed that “rare decisions upholding the sacerdotal [confession] privilege to the full extent may be found up to eighty years ago, but they are not now regarded as law, because the preponderance of judicial opinion in England has denied any privilege whatever to the priest for confidences made either inside or outside the confessional”,194 either overlooking or brushing the old common law aside.195 He did not attribute significant weight to the dicta against religious confession privilege in Wheeler v LeMarchant and considered on balance, in the unique religious context in Ireland, that a religious communications privilege must be recognised in practice. Specifically he noted that though in “an action on a building contract”,196 Sir George Jessel MR did opine against any religious communications or confessional privilege, “there has long been a feeling that the community is better served by passing over awkward clerical incidents than by advertising a discreditable rule of law”.197 He continued that “the utter futility of trying to invade the secrecy of the confessional”198 in Ireland, had seen the Irish courts give “clear indications … that a priest in the witness box could not be asked to break the seal”.199 “[T]hough there are some reasons common to the cases for the sacerdotal and for the legal privileges”,200 the fact that “the priest is not hired” means that “a parishioner’s waiver of privilege should not … destroy the priest’s right to keep his 191 Contrast these facts with those, for example, in Normanshaw v Normanshaw (1893) 69 LTR 468, where Jeune P apparently convinced the clergyman to testify (supra, p. 111) and in Tannian v Synnott (1903) 37 Ir. L.T. 275 (infra, p. 152) where the Roman Catholic priest made no objection to the request for his testimony. Thus in the present case, the absence of clerical waiver of any privilege, obliged the judge to decide on the matter of privilege raised as an issue of law rather than on grounds of simple pragmatism. While there have been other judges who have asserted a privilege for a clerical witness when it may not have been asserted for them (eg Best CJ in Broad v Pitt (1828) 3 Carr & P 518; 172 ER 528) and possibly Alderson B in R v Griffin (1853) 6 Cox Cr Cas 219), here Gavan Duffy J was faced with the pure legal question of whether the priest owned any privilege, since neither of the parties had any objection to the adduction of the evidence he could give. 192 Cook v Carroll [1945] Ir. Rep. 515, 517. 193 Idem. 194 Idem. 195 Idem. 196 Idem. 197 Idem. 198 Cook v Carroll [1945] Ir. Rep. 515, 518. 199 Idem. 200 Cook v Carroll [1945] Ir. Rep. 515, 519. This statement seems to be an allusion to Baron Alderson’s analogy between legal professional privilege and religious confession privilege in R v Griffin (1853) Cox Cr Cas 219 which was discussed in chapter four, supra, pp. 115–116.

Religious Communications Privilege at Common Law 151 secret”.201 He then concluded his review of the common law with the strong statement that “it would be intolerable that the common law, as expounded after the Reformation in a Protestant land, should be taken to bind a nation which persistently repudiated the Reformation as heresy”,202 since that common law resulted from “the regrettable preconceptions of English Judges”.203 After thus disposing of English common law’s denials of any religious privilege, Gavan Duffy J proceeded to appreciate the wisdom of Wigmore’s four fundamental conditions precedent to the establishment of a privileged communication.204 He found that protecting “the priest against having to testify [was] … only a half measure of justice, if [the two adverse parties could] … blurt out the conversation”205 and ruled that “no conversation whatever of the secret conversation [was] … allowable, without the express permission of the parish priest”.206 “[T]he emergence of the national Constitution”207 of Ireland which “affirm[ed] the indefeasible right of the Irish people to develop its life in accordance with its own genius and traditions”208 was a “complete and conclusive answer to the objection”209 that Gavan Duffy J had not found a certain “judicial precedent in favour of the parish priest”.210 “[T]he parish priest of Ballybunion [had thus] committed no contempt of the High Court on Circuit”.211 As the Supreme Court of Canada has since done, Gavan Duffy J also drew authority for his decision to recognise a confidential religious communications privilege from constitutional precedent which was particular to his own jurisdiction. Though the majority in Gruenke chose to apply the Wigmore canons to affirm a discretionary or ‘case-by-case’ privilege, Gavan Duffy J’s strong statements affirm a broad confidential communications privilege rather than a narrow religious confession privilege in Ireland since the communication which he held privileged on the facts before him did not represent a sacramental confession. It is also worthy of note that Gavan Duffy J’s interpretive approach represents a more accurate application of the Wigmore canons than was adopted by the Supreme Court of Canada. For Wigmore favoured the creation of a class privilege for religious confessions, though it is unclear whether 201

Idem. Idem. 203 Cook v Carroll [1945] Ir. Rep. 515, 520. 204 Cook v Carroll [1945] Ir. Rep. 515, 521. The four Wigmore canons are quoted above at note 130. 205 Ibid, p. 524. 206 Idem. 207 Ibid, p. 523. 208 Ibid, p. 519. 209 Ibid, p. 523. 210 Idem. Sir George Jessel MR’s dictum in Wheeler v LeMarchant (1881) 17 Ch D 675, is treated by Gavan Duffy J as an example of a case in which “the old common law has been overlooked or brushed aside” (ibid, p. 517) and is not followed on that basis. 211 Ibid, p. 525. 202

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he saw that class privilege as extending beyond formal religious confessions to confidential religious communications generally.212 While the earlier sketchy solicitor’s journal report in Tannian v Synnott213 does not reveal any consideration of “the Wigmore principles”, it does reaffirm early Irish commitment to a discretionary religious communications privilege to be invoked in favour of a priest’s refusal to admit the evidence in contest. Heard before Palles CB, the reference to religious communications privilege was incidental in a civil case involving a claim of damages for slander. It is also unusual since the Roman Catholic priest involved was willingly involved as a plaintiff witness to provide evidence of a “conversation [that] had taken place in the street … and not in confession”,214 though it was acknowledged that the defendant had spoken to the priest in his professional capacity. The Lord Chief Baron is reported to have “stated that he would not ask the witness to depose to anything connected, directly or indirectly, with confession, or in reference to his advice as to whether a man had committed a crime … [but] that the present occasion was not complicated by such matters … [so that] he allowed the evidence to be given in spite of any objection on behalf of the defendant.215 It is fair to observe in the light of Gavan Duffy J’s later elaboration of a larger privilege, that the Tannian v Synott facts might now see this priest’s evidence excluded, even though there was certainly room to admit it as falling outside any class of religious privilege at all. Discretion in Commentary Though this summary of the evolution of judicial discretion benefitting confidential religious communications in England, Ireland and Canada is fairly consistent, the commentators who have recognised argument in favour of such judicial discretion, have not interpreted the authority as being well established or clear. After citing Best CJ in Broad v Pitt, Mc Nicol has written: There appears to be wide support among commentators for the view that judges have the scope to discourage attempts to force disclosure. At this stage, however, there does not appear to be any clear authority in Australia to support the existence of a special residual discretion not to insist on evidence being given.216

212 Wigmore JH, Evidence in Trials at Common Law, Revised by John T McNaughton, Boston, Little Brown, 1961, Vol 8, pp. 876–878. 213 Tannian v Synnott (1903) Ir. LT 275. 214 Idem. 215 Idem. 216 McNicol, SB, Law of Privilege, Australia, The Law Book Co, 1992, p. 332.

Religious Communications Privilege at Common Law 153 Bursell has written of the position in England: The present state of the law as to judicial discretion (both in civil and criminal cases) is unclear but s 82(3) of the Police and Criminal Evidence Act, 1984 apparently recognises the existence of such an exclusionary discretion.217

But Professor Elliott218 doubts that s 82(3) of the Police and Criminal Evidence Act 1984 recognises the judicial discretion identified by Judge Bursell and instead says that provision was “overtaken and overlapped”219 (though not repealed) “by a new more general discretion introduced by s 78(1)”.220 Professor Elliott summarised his view with the statement that “it is quite unlikely that a judge is able to protect a reluctant witness by discretion”,221 and that “it would be surprising if the judges ever used [the discretion in s 78] to rule out a priest’s evidence of a confession.”222 Professor Elliott’s view is surprising since all the cases he reviewed have been discussed above and provide some authority for the exercise of judicial discretion in religious confession privilege cases – without any statutory endorsement as arguably allowed by the two sections of the English Police and Evidence Act 1984 cited. The better view of the authorities must be that the common law provides scope for the exercise of judicial discretion to privilege even religious communications (and not just formal religious confessions) where the public interest can be invoked to justify the exercise of such discretion. This notwithstanding the fact that neither English nor Canadian authority has recognised a ‘class’ privilege for either religious confessions or confidential religious communications. This chapter has demonstrated that a long line of common law authority dating back at least to 1791,223 if not to 1606,224 provides ample scope for the recognition at common law of both a religious confession privilege and also a broader religious communications privilege. When twentieth century authority in Ireland, England and particularly Canada is overlaid upon that older common law base, it is difficult to ignore the existence of a judicial discretion such as has the power to exclude evidence of confidential religious communications. Whether such discretion will ever be used, and if used, whether it will outweigh other public interest considerations which will be factored against it,

217

Bursell, RDH, “The Seal of the Confessional” (1990) 1 (7) Ecclesiastical LJ 84, 109. Emeritus Professor of Law at the University of Newcastle-upon-Tyne, England. 219 Elliott, DW, “An Evidential Privilege for Priest-Penitent Communications” [1993–1995] 3 Ecclesiastical LJ 272, 277. 220 Idem. 221 Ibid, p. 274. Though Lord Simon in D v NSPCC similarly said that law rather than discretion must control the course of a trial, he also recognised that a judge could exercise considerable moral authority on the course of a trial as for example by suggesting that counsel abandon a certain line of questioning (D v NSPCC [1978] AC 171, 239). 222 Ibid, p. 278. 223 Du Barré v Livette (1791) 1 Peake 108; 170 ER 96. 224 Garnet’s case (1606) 2 Howell’s State Trials 217. 218

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is another matter. But the common law certainly confirms the existence of such discretion. Conclusion Chapters four and five have explained the development of the common law on religious confession privilege since Garnet’s case and the publication of Coke’s Second Part of the Institutes in the early seventeenth century. Recognising that the existence of a religious confession privilege has never been solemnly decided225 in an English court, the book has reviewed other judicial treatment that has confused it with confessions obtained under duress; misinterpretations of obiter statements in cases about legal professional privilege and cases that really only dealt with general confessions somehow involving clergy – and has confirmed that ‘never solemnly decided’ assessment. But it has also suggested that the reluctance of a number of senior English judges to compel the disclosure of confidential religious communications in their courtrooms must mean something. When those many expressions of reluctance are considered together, a thread of emerging discretion can be identified. That thread suggests that members of the clergy may be privileged from providing evidence obtained in confidential religious communications if a countervailing public interest in protecting such confidence exists. In Canada and Ireland, local constitutional instruments have justified a more complete elaboration of the metes and bounds of religious communications privilege. Thus in Canada, a ‘caseby-case’ confidential religious communications privilege has clearly existed since R v Gruenke in 1991, and in Ireland, since Cook v Carroll in 1945, there has existed a ‘class’ privilege which prevents any confidential religious communication at all being lead as evidence in court without the consent of the priest involved having first been obtained. This conclusion will now be tested against the various theories which have been advanced to suggest that though religious confession privilege existed before the English Reformation, it was extinguished before the modern law of evidence was established.

225

Stephen JF, A Digest of the Law of Evidence, London, MacMillan and Co, 1876, p. 171.

CHAPTER SIX

THEORIES ABOUT THE EXTINCTION OF RELIGIOUS CONFESSION PRIVILEGE Introduction The purpose of this chapter is to examine the theories for extinction of religious confession privilege that exist to determine whether they have any validity despite the tentative conclusion advanced from the materials considered to date. There are five principal arguments that religious confession privilege was extinguished before the commencement of the twentieth century. They are first, that religious confession privilege was extinguished either at or by the English Reformation or by the Restoration. Secondly, that the English social system and the law it produced was so set against Roman Catholicism from the time of the English Reformation until the end of the nineteenth century reform era that religious confession privilege “must” have been extinguished during that period. Thirdly, the fact that any legislature has felt the need to pass a religious confession privilege statute proves religious confession privilege did not exist at all, or has been extinguished. Fourthly, that in Anglo-American jurisdictions without an established state church, the absence of parliamentary legislative authority for a canonical confession privilege, has extinguished the existence of any common law religious confession privilege. And finally, that Sir George Jessel MR’s dicta against religious confession privilege in Anderson v Bank of British Columbia1 and Wheeler v LeMarchant2 were so authoritative or so captured the spirit of public policy where religious confession privilege was concerned that they extinguished any residue of the privilege that may endured in English common law in the late nineteenth century. After reviewing each of these theories separately, the chapter will conclude that religious confession privilege has not been extinguished at common law. Religious Confession Privilege Extinguished by the Reformation or the Restoration? Wigmore appears to be the primary authority for the theory that religious confession privilege was extinguished either by the English Reformation or by the Restoration. He wrote, as will be remembered3: 1 2 3

Anderson v Bank of British Columbia (1876) 2 Ch D 644. Wheeler v LeMarchant (1881) 17 Ch D 675. This quotation was cited previously in the Introduction to the thesis, p. 1.

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Chapter Six It is perhaps open to argument whether a privilege for confessions to priests was recognized in common law courts during the period before the Restoration … But since the Restoration, and for more than two centuries of English practice, the almost unanimous expression of judicial opinion (including at least two decisive rulings) has denied the existence of a privilege.4

Various editions of Wigmore’s work5 have been cited by other commentators for his proposition that religious confession privilege did not survive the Stuart Restoration. For example, Vincent C Allred has written: The above are all the reported English cases on the subject. They are conflicting and even where the privilege is squarely denied there are indications of mental disquietude on the part of the judge. Professor Wigmore sums up as follows: [after which follows the Wigmore quote above and then the Allred conclusion] … but the privilege cannot be said to have been recognized as a rule of the common law in England.6

Michael James Callahan references only Wigmore’s “unequivocal assertion … that the privilege was unknown at common law”,7 and though Jacob Yellin discusses the cases Wigmore cites, he only uses the quotations that Wigmore used in his footnotes without any apparent reconsideration of the facts of those cases.8 Sister Simone Campbell does not cite Wigmore for her proposition that “[a]s state interests became dominant, the [religious confession] privilege was abandoned by the courts”,9 but she does cite another Allred article to the same effect10 as that quoted above. Edward A Hogan11 apparently gave the subject of the extinction of the privilege some independent thought. He considered that since Blackstone’s “only reference to privilege in the law of evidence [was] given to that arising 4

Wigmore, JH, McNaughton revision, op cit, Vol 8, p. 869. 1st edition 1904; 2nd edition 1923; 3rd edition 1940; McNaughton Revision in 1961, with a most recent 1999 supplement current as at the time of this writing. 6 Allred, VC, “The Confessor in Court” (1953) 13 The Jurist 2, 7. 7 Callahan, MC, “Historical Inquiry into Priest-Penitent Privilege” (1976) 26 The Jurist 328, 329. 8 Yellin, J, “The History and Current Status of the Clergy-Penitent Privilege” (1983) 23 Santa Clara LR 95, 101. Medina uses an identical phrase – “virtually unanimous opinion” – (the writer suspects this means Wigmore) that the privilege ceased to exist after the Reformation (Yellin, idem, citing Medina, JH, “Evidence: ‘Is there a time to keep silence?’ – The priest-penitent privilege in Oklahoma” (1974) 27 Oklahoma LR 256). Valentine A Toth, however, cites Peake’s 1801 “A Compendium of the Law of Evidence” as authority for her statement that “it was clearly denied that such privilege ever existed … in the 18th and early in the 19th century” (“The Clergyman: his privileges and liabilities” (1960) 9 Clev-Mar LR 323, 330). Peake’s interpretation stemming primarily from his report of R v Sparkes ( (1790) unreported) was discussed and dismissed in chapter one, pp. 16–18. 9 Campbell, S, “Catholic sisters, irregularly ordained women and the clergy-penitent privilege” (1976) 9 UC Davis LR 523, 525. 10 Allred, VC, “United States Law of Privileged Communication” (1966) 11 New Catholic Encyclopedia 810. 11 Hogan, EA, Jr, “A modern problem on the privilege of the confessional” (1951) 6 Loyola LR 1. 5

Theories About the Extinction 157 out of the relationship of attorney and client”12 citing Wilson v Rastall,13 religious confession privilege had been extinguished by the time Blackstone’s commentaries were published in 1783.14 Though it is unclear whether Anonymous15 in 1693 was one of the “two decisive rulings”16 Wigmore found against religious confession privilege after the Restoration, since he leaves no other indication for his choice of the Restoration as the time of the demise, it appears that Anonymous represented confirmation to Wigmore that religious confession privilege had been extinguished by the end of the seventeenth century. Perhaps because of the lack of an obvious reason for Wigmore’s choice of ‘the Restoration’ as the date by which religious confession privilege had been extinguished from the common law, Tiemann and Bush,17 have gone to some trouble to understand the assertion and to try and explain it. After a brief survey of the English common law before the Reformation18 which they affirm that the United States inherited, they note that the Anglican Church moved from compulsory confession to voluntary confession. Though the “absolute injunctions to secrecy”19 in Roman Catholic canon law were removed from the 1603 Anglican canons, Tiemann and Bush state that the seal of confession was still inviolable, except in cases of treason (they accept Coke’s exception20) “whether … made to a Roman Catholic priest or to an Anglican one”.21 They then ponder the reasons that can be advanced to explain how “[t]he privileges of the confessional were withdrawn from the English clergy sometime during the seventeenth century”22 as Wigmore stated. They speculate that it was because of “the banning of the prayer book of the Church of England”,23 but they confirm that “[n]o writer seems clear about the exact time the privilege was withdrawn, nor why”24 and that there is an absence of any clear and compelling evidence that lawyers would normally cite to prove a change in an established common law rule. They note with Hogan above, guided by 12

Hogan, op cit, p. 12. Wilson v Rastall (1792) LTR 753; 100 ER 1283. 14 Blackstone, W, Commentaries on the Laws of England, New York & London, 1978, is a reprint of the 1783 edition, printed for W. Strahan and T. Cadell, London, and D. Prince, Oxford. 15 Anonymous (1693) Skin 404; 90 ER 179. 16 Wigmore, McNaughton revision, op cit, Vol 8, p. 869. 17 Tiemann, WH, and Bush, JC, The Right to Silence – Privileged Clergy Communications and the Law, 2nd ed, Nashville, Abingdon Press, 1983. 18 Ibid, pp. 39–48. 19 Ibid, p. 53. 20 For detailed discussion of Coke’s treason exception to religious confession privilege, see the discussion in chapter two, pp. 48–54. 21 Tiemann and Bush, op cit, p. 52. 22 Ibid, p. 53. 23 Ibid, p. 53, discussing Wigmore, JH, Evidence in Trials at Common Law, revised by John T McNaughton, Boston, Little Brown, 1961, Vol 8, p. 869. 24 Idem. 13

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Wigmore again, that Blackstone’s “monumental work on the common law about the time of the American Revolution, ignores completely the privilege of the confessional”,25 but suggest that this omission proves nothing since “[n]o writer seems clear about the exact time the privilege was withdrawn, nor why.”26 They think it most likely that “the withdrawal occurred in January, 1645, with the abolition by Parliament of the Anglican Prayer Book”,27 since the replacement “Directory for Worship … produced by the Westminster Assembly contained no provisions for private confession and absolution”,28 since “[t]he Puritans had little patience with former Anglican ordinances”.29 But they point out that this reasoning cannot have been Wigmore’s, since he does not suggest the privilege was ended until after Charles II’s return. They then conjecture that Wigmore’s unstated reasoning may have been that when King Charles II was restored, he enacted “severe repressive measures … against the Puritan ministry”.30 In such context “[t]he withdrawal of the seal would have been one more act of persecution, aimed at preventing the Puritan pastors from holding back secrets before royal tribunals”.31 But Tiemann and Bush also find this reasoning unconvincing since “the Puritans did not practice confession as such”.32 Though they do not say that they end their search stumped or mystified as to why so respected an evidence law authority as Wigmore should leave his conclusion essentially unjustified, they concede that result when they abandon his post-Charles II Restoration date for “[t]he withdrawal of the seal”33 and return to their own thought that it must have happened during “Cromwell’s toleration”.34 Wright and Graham35 were more direct in their doubt of Wigmore’s conclusion when they wrote that “[c]ourts and writers regularly assert that there was no penitent’s privilege at common law. The authority cited in support of this proposition is seldom impressive, usually consisting of one or two judicial opinions or a citation to Wigmore.”36 After their own review of the historical common law, Wright and Graham conclude that Wigmore’s “statements of the

25

Ibid, p. 53. Idem. 27 Idem, however they do not answer the obvious question of where religious confession privilege then stood once the Prayer Book was reinstated, as it was (Bursell, RDH, “The seal of the confessional” (1990), Ecclesiastical LJ 1 (7) (1990) 84, p. 89). 28 Ibid, p. 53. 29 Idem. 30 Idem. 31 Idem. 32 Ibid, pp. 53–54. 33 Ibid, p. 53. 34 Ibid, p. 54. 35 Wright, CA, and Graham, KW, Federal Practice and Procedure, 3rd ed, St Paul Minnesota, West Publishing Co, 1992. 36 Wright and Graham, op cit, Vol 26, p. 29. 26

Theories About the Extinction 159 impact of the authorities he cites”37 against a religious confession privilege after the Restoration are “exaggerated”.38 Though the existence of a religious confession privilege at English common law may never have been “solemnly decided”,39 it is not correct to see Holt CJ’s passing reference to a person not being entitled to legal professional privilege in 169340 as extinguishing religious confession privilege which had been a part of English custom for centuries. Though the Commissioners in Garnet’s case41 may not have allowed Garnet’s attempted religious confession privilege defence, their denial that he had received a confession and Coke’s belief that such an argument of religious confession privilege would have been defeated by “the treason exception”, confirm that the privilege outlasted the Reformation by more than sixty years. The Wigmore conclusion that religious confession privilege did not survive the seventeenth century is also discountenanced by the marked reluctance of many judges to compel priests to testify into the eighteenth and nineteenth centuries. It is also appropriately observed that the line of authority in favour of a discretionary confidential religious communications privilege at common law discussed in chapter five, was well established by the time Wigmore wrote his first edition – and his own four canons42 have enlightened that line of development subsequently.43 Before I pass to the argument that anti-Catholic prejudice extinguished religious confession privilege from English common law, one further historical theory as to why religious confession privilege did not survive the eighteenth century is appropriately discussed here since it too has been attributed to Wigmore. That theory is that in the seventeenth century, the philosophical rationale for all privileges underwent a marked change such that any enduring privilege was thereafter necessarily premised in public interest rather than in a

37

Ibid, p. 41. Idem. 39 Stephen JF, A Digest of the Law of Evidence, London, MacMillan and Co, 1876, p. 171. Winckworth says “the question [of the existence of religious confession privilege] has never really been raised in any English court since the Reformation” (The Seal of the Confessional and the Law of Evidence, London, S.P.C.K. 1952, p. 15). Nokes says that “the existence of the privilege might appear to be an open question” because “few of the judges ever referred to their brethren’s opinions … [and] full argument … [was never] heard, or a definite ruling given” (Nokes, GD, “Professional Privilege” (1950) 66 LQR 88, 98). Allred cited an 1899 American Law Review article for his similar conclusion that “the question had never received precise adjudication in England” (Allred, VC, “The Confessor in Court”, The Jurist 13 (1953) 2, 7). 40 Anonymous (1693) Skin 404; 90 ER 179. 41 Garnet’s case (1606) 2 Howell’s State Trials 217. 42 Wigmore, JH, McNaughton revision, op cit, Vol 8, p. 527. They are set out in full in chapter five, note 130. 43 Gavan Duffy J in Ireland in Cook v Carroll [1945] Ir. Rep. 515, found Wigmore’s canons helpful in recognising a religious communications class privilege in Ireland and the Supreme Court of Canada found them similarly useful in establishing a discretionary ‘case-by-case’ privilege in Canada in R v Gruenke (1991) 3 SCR 263. 38

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duty to keep confidences. The logic behind this theory was set out by Wilson J in the High Court of Australia in 1983 when that court was asked to consider whether documents kept by a solicitor in his office were appropriately seized by Australian Federal Police Officers executing a search warrant. He said: But confidentiality alone cannot supply the reason for … [legal professional] privilege. Originally it may have done so, in common with the protection which the law at that time afforded to other confidential relationships. In the sixteenth and seventeenth centuries the privilege was based in the duty of the solicitor to respect professional confidences. It was a matter of honour and consequently the privilege belonged to him rather than to the client: Wigmore on Evidence, McNaughton rev. (1961) vol. 8, par. 2290. However, in the eighteenth century the law moved decisively away from this approach, with the Duchess of Kingston’s Case (1776) 20 State Tr 355 providing the turning point. The public interest, not merely the protection of confidentiality, became the reason for the rule. Thereafter, the only profession to have the privilege of non-disclosure was the legal profession. The historical evolution of the privilege is described by Lord Simon of Glaisdale in D v National Society for the Prevention of Cruelty to Children (1978) AC 171, at pp. 237 – 239.44

Though the Duchess of Kingston’s case has certainly been quoted as authority for Wilson J’s proposition in the text writers,45 a judgement against any evidential privilege for a medical practitioner with no mention of religious confession privilege or its discrete history, cannot extinguish religious confession privilege from the common law. It is noteworthy that neither Wilson J nor Lord Simon cited any other authority for the proposition that legal professional privilege is the only evidential privilege that survived the eighteenth century. Did Anti-Catholic Prejudice Extinguish Religious Confession Privilege? Sir James Stephen QC46 surfaced this theory in the 1876 original edition of his Digest of Evidence.47 Though I have cited part of the following quote previously to identify when the law of evidence evolved48, it also provides a clear indication of the influence that anti-Catholic prejudice had upon the development of law during the same period. He wrote: I think the modern law of Evidence is not so old as the Reformation, but has grown up by the practice of the courts, and by decisions in the course of the last

44

Baker v Campbell (1983) 153 CLR 52, 94. See discussion in chapter one, pp. 17–18. 46 Sir James Stephen served as a Criminal Court Judge from 1879 to 1891and was made a Baronet in 1891 http://www.infoplease.com/ce6/people/AO846659.html, (last visited 30 July 2003). 47 The language in all subsequent editions, including the 12th in 1948, is unchanged. 48 See chapter four, p. 90. 45

Theories About the Extinction 161 two centuries. It came into existence at a time when exceptions in favour of auricular confessions to Roman Catholic priests were not likely to be made. The general rule is that every person must testify to what he knows. An exception to the general rule has been established in regard to legal advisers, but there is nothing to show that it extends to clergymen, and it is usually stated so as not to include them.49

Despite the fact that he was a Roman Catholic apologist, Richard Nolan thought that the privilege which undoubtedly existed at the time of the Reformation, was probably extinguished during the Catholic persecution which followed for centuries, though he points to no authoritative date or event which signalled its demise.50 Wright and Graham contribute: By the time Catholics in England had regained their civil rights and could claim the privilege, English law had already set its face against all privileges other than attorney-client privilege.51

However, they qualify that apparent support for the idea that religious persecution contributed to the supposed extinction of the privilege with their acknowledgement that the clerics of the established Church … were not interested in embarrassing the courts with divisive demands for a privilege when they could count on the religious sympathies of the judges to protect their secrets without the existence of a formal privilege.52

Such veiled reference to the evolution of a discretionary religious communications privilege53 is hardly conclusive that religious confession privilege had been extinguished. But there is considerably more opinion that points up the unworthiness of the notion that pure historic prejudice in the absence of any formal legal decision, can extinguish a privilege. That such opinion pre-dates twentieth century acceptance of non-discrimination norms is the more impressive. Best54 was the first who so wrote and he responded to the idea that Sir Michael Smith, the Irish Master of the Rolls, had extinguished religious confession privilege by his 1801 decision in Butler v Moore,55 as follows: How far that form of religious belief being disfavoured by the law at the period, affected those decisions, it is not easy to say, but [it] leave[s] the general question untouched. [italics original].56

49

Stephen, JF, A Digest of the Law of Evidence, London, MacMillan and Co, 1876, p. 172. Nolan, RS, “The law of the seal of confession” (1913) 13 Catholic Encyclopedia 649, 653. 51 Wright, CA, and Graham, KW, Federal Practice and Procedure: Evidence, 3rd ed, St Paul Minnesota, West Publishing Co, 1992, Vol 2b, §5612, p. 42. 52 Idem. 53 Discussed in chapter five, supra. 54 Best, WM, A Treatise on the Principles of Evidence, London, S Sweet, 1849. See also brief reference to this opinion of Best in chapter four at note 104 and in the supporting text. 55 Butler v Moore (1804–1806) 2 Sch & Lef 249. 56 Best, WM, op cit, pp. 459–460. 50

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Badeley’s contemporary pamphlet57 which responded to the public debate surrounding the case of Constance Kent noted in chapter four,58 also referenced the effect that anti-Catholic prejudice had had upon the development of the common law concerning religious confession privilege. But he considered that error to have been corrected by parliamentary legislation passed between 1791 and the time of his writing in 1865.59 He concludes: The religion is restored, not indeed as the religion of the State, but as one sanctioned and protected by law. The Catholic therefore is reinstated in his right to the perfect enjoyment of all the ordinances of his creed, and of those privileges which are necessary to the performance of every one of his religious duties. If he is not, he has not that benefit which the legislature intended to give him.60

Though Badeley says that the “right of Catholics at the present day to have their confessions respected in courts of justice rests upon a different ground [than for Anglicans]”,61 he says that even the Catholic privilege has a clear origin in both common and ecclesiastical law. Finlason’s apologetic report of Hill J’s decision in R v Hay62 disagrees with Badeley’s non-sacramental interpretation of Anglican confession, but concludes that both religions still benefit by an unrevoked privilege with unequivocal common law origins. For Badeley in 1865, the Anglican privilege is even stronger than the common law privilege which favours confessional privilege generally, because the practices of the state established church (including secret confession) have force as general law. Mayor Clinton’s decision in The People v Phillips63 expresses a very critical view of the English common law still applicable in North America in the early nineteenth century. Though he ultimately decided the case on constitutional grounds inapplicable in the English context, his reasoning is informative, particularly since it concurs in the conclusion to which Badeley and Finlason both came fifty years later. He began with reference to the decision in Butler v Moore64 in Ireland:

57 Badeley, E, The Privilege of Religious Confessions in English Courts of Justice considered in a letter to a Friend, London, Butterworths, 1865. 58 Chapter four, pp. 116–120. 59 Chapter four, note 190. 60 Badeley, op cit, p. 32. Badeley’s reference to the legislative restoration of the Catholic religion to a position of sanction and protection is an implicit reference to that then well-known and contemporary series of enactments which relaxed the law against non-conformist religions generally, and Roman Catholicism in particular. See specifically The Roman Catholic Relief Acts of 1791 (31 Geo. 3, c 32) and 1829 (10 Geo. 4, c 7). 61 Badeley, op cit, p. 32. 62 R v Hay (1860) 2 Foster & Finlason 4; 175 ER 933. 63 The People v Phillips (1813) NY Ct. Gen. Sess., reprinted in “Privileged Communications to Clergymen”, The Catholic Lawyer 1 (1955) 198. 64 Butler v Moore (1804–1806) 2 Sch & Lef 249.

Theories About the Extinction 163 With those who have turned their attention to the history of Ireland, the decisions of Irish courts, respecting Roman Catholics, can have little or no weight. That unfortunate country has been divided into two great parties, the oppressors and the oppressed. The Catholic has been disenfranchised of his civil rights, deprived of his inheritance, and excluded from the common rights of man; statute has been passed upon statute, and adjudication piled upon adjudication in prejudice of his religious freedom. The benign spirit of toleration, and the maxims of enlightened policy, have recently ameliorated his condition, and will undoubtedly, in process of time, place him on the same footing with his Protestant brethren; but until he stands upon the broad pedestal of equal rights, emancipated from the most unjust thraldom, we cannot but look with a jealous eye upon all decisions which fetter or rivet his chains.65

Since the decision of Buller J in R v Sparkes66 had been cited to him as an authority against the existence of religious confession privilege, and since Mayor Clinton had set his mind to affirm the existence of such privilege he dispatched Buller J’s reasoning without any hesitation at all. He observed that there was no official report of the case and such anecdotal evidence as was available about its finding came from the interested counsel of one of the parties in the matter.67 He said that the reasoning was unconvincing because it was the hurried decision of a single judge on circuit without research opportunity68 and he said that “[i]t [was] virtually overturned by Lord Kenyon, who certainly censure[d] it with as much explicitness as one Judge can impeach the decision of his colleague, without departing from judicial decorum”.69 And for good measure he added that it was just plain wrong on moral grounds.70 But speaking from an American context where he saw religious confession as part of that freedom of religious practice which was protected by the New York State Constitution and the First Amendment to the Federal Constitution, he also distinguished Buller J’s decision from that which confronted him in Phillips with the observation that the Protestant clergyman who received the confession in Sparkes was not “exposed to ecclesiastical degradation and universal obloquy” if he revealed the relevant confidential communication.71 Though Mayor Clinton’s language is harsh and intemperate and has no precedential authority in the British Commonwealth, it is prescient of twentieth century opinion in the English common law world enlightened since by

65

The People v Phillips (1813), as reported in The Catholic Lawyer 1 (1955) 198, 205–206. R v Sparkes (1790), unreported but referred to in Du Barré v Livette (1791) 1 Peake 108; 170 ER 96. 67 The People v Phillips, as reported in “Privileged Communications to Clergymen”, The Catholic Lawyer 1 (1955) 198, 204. 68 Idem. 69 Idem. 70 Idem. 71 Idem. 66

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international human rights instruments and constitutional principle. Mayor Clinton’s sentiments also resonate with the more circumspect comments made by Gavan Duffy J in Ireland in 1945 in the light of the Irish Constitution.72 It is memorable that Gavan Duffy J also observed that “it would be intolerable that the common law, as expounded after the Reformation in a Protestant land, should be taken to bind a nation which persistently repudiated the Reformation as heresy”,73 since that common law resulted from “the regrettable preconceptions of English Judges”.74 Since even that anti-Catholic prejudice which did find its way into common law has been expunged by statute and discredited by objective doubt, it is inaccurate to state that religious confession privilege in English common law was extinguished by more than two hundred years of official persecution of the Roman Catholic faith. Does the Advent of Statutory Religious Confession Privilege Prove That It Had Been Extinguished at Common Law? This argument was most memorably expressed by Lamer CJ in R v Gruenke75 when he gave the majority judgement of that court in 1991.76 He said that he could not “agree with the appellant that the existence of a limited statutory religious privilege in some jurisdictions indicates that a common law privilege exists. If anything, the fact that there is a statutory privilege in some jurisdictions indicates that the common law did not protect religious communications – thus necessitating the statutory protection.”77 It is not clear from the rest of the judgement, what arguments counsel for the appellant put to the court in support of the submission that the existence of a limited statutory religious privilege in some jurisdictions indicated the existence of a common law privilege. Given that Adele Gruenke’s communication was not a formal religious confession, it is unlikely that her counsel sought to establish the existence of a narrow religious confession privilege in the extant common law, so that the Supreme Court of Canada did not have to consider that. In a practical sense, the same question must be said to have faced every Parliament that has enacted a statutory religious confession privilege – including all fifty United States,78 the two Canadian jurisdictions acknowledged 72

Cook v Carroll [1945] Ir. Rep. 515. Cook v Carroll [1945] Ir. Rep. 515, 519. 74 Cook v Carroll [1945] Ir. Rep. 515, 520. 75 R v Gruenke [1991] 3 SCR 263. 76 Discussed supra in chapter five, pp. 144–148. 77 R v Gruenke [1991] 3 SCR 263, 288. 78 But not the US federal jurisdiction where a common law religious confession privilege has been found to exist (Mullen v US (1959) 263 F 2d 275). See also chapter five, note 1, for details of the statutes applicable in US State jurisdictions. 73

Theories About the Extinction 165 by Lamer CJ in R v Gruenke, Victoria,79 Tasmania,80 the Northern Territory,81 New South Wales,82 and the Commonwealth of Australia83 and New Zealand.84 The history of the origins of those statutes and their subsequent development manifest a variety of moving causes. Those include in New York State in 1828, an apparent egalitarian concern in the then fledgling republican democracy, to spell out that First Amendment Freedom of Religion included religious confession privilege as a matter of practice;85 in New South Wales in 1989, equivocal desires both to correct the misapprehension of the judge in R v Young86 that there was no common law religious confession privilege and a desire to create one if it did not exist,87 and in many United States jurisdictions, legislative efforts to order seemingly incoherent judicial applications of both common law and statutory privileges in the face of voluminous academic suggestions toward improvement.88

79 The Evidence Act 1958, s 28(1) (No 6246 of 1958). The first Victorian religious confession privilege was enacted in 1890 (Evidence Act 1890) (54 Vict No 1088 c 55). 80 The Evidence Act 1910, s 96 (1 George V, No 20) was the first Tasmanian provision though it was superseded in 2001 when Tasmania adopted the Uniform Commonwealth Evidence Act (76/2001). 81 The Evidence Ordinances 1939, s 12(1). 82 The first religious confession privilege provision in statute in New South Wales was the Evidence (Religious Confessions) Amendment Act 1989 which inserted section 10(6) into the New South Wales Evidence Act 1898. That provision was superseded by the Evidence Act 1995, s 127 (No 25 of 1995). 83 The Evidence Act 1995, s 127. 84 The Evidence Amendment Act 1980, s 31. The first New Zealand religious confession privilege was enacted in the Evidence Further Amendment Act 1885, s 7 (49 Vict No 15). 85 Rev. Stat. of N.Y. (1828), Pt. 3. c.7. tit. 3 §72, though note that the federal constitution was not binding upon the states until perhaps 1940 (see chapter seven, note 202). Note also that Reese traces the Delaware (1961) statute to a similar dissatisfaction with the treatment of religious confessions at common law in that state (Reese, S, “Confidential Communications to Clergy” (1963) 24 Ohio St LJ 55), and Allred says that the New Jersey statute was established by the state’s legislature after it had been denied twice in court (Allred, VC, “The Confessor in Court” (1951) 13 The Jurist 2, 9). 86 An unreported case which was celebrated in the NSW Press because Father Mark McGuigan a Catholic priest in Lithgow, refused to tell whether or not he had heard a confession from Pamela Young, who was charged with murdering her husband on New Years Eve in 1988. The Daily Mirror reported that Ken Horler QC had opined that the Priest should be charged with contempt but that Attorney-General John Dowd had stepped in to prevent such a charge being laid (Daily Mirror (NSW) 18 August 1988). This case is a different case than R v Young (1999) 46 NSWLR 681 cited elsewhere in this thesis and which dealt with that defendant’s challenge to sexual assault communications privilege asserted by various counsellors to the complainant in a rape case. 87 R v Young was only reported in Sydney newspapers (Daily Mirror (NSW) 17 August 1988; The Sydney Morning Herald, 3 April 1989). The reasoning of the NSW legislature is revealed in the Hansard debates that followed those newspaper reports and resulted in the passage of the Evidence Amendment (Religious Confessions) Act of 1989 (Parliamentary Debates (NSW) Legislative Council, 21 November 1989, pp. 12829–12835). 88 For example, see Hogan, EA, Jr, “A modern problem on the privilege of the confessional” (1951) 6 Loyola LR 1; Allred, VC, “The Confessor in Court” (1953) 2 The Jurist 2; Reese, S, “Confidential Communications to Clergy” (1963) 24 Ohio St LJ 55; Kuhlmann, FL, “Communications to Clergymen – When are they privileged?” (1968) 2 Valparaiso ULR 265;

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Such a variety of moving causes for legislation manifest the diverse influences which press upon modern legislatures. Nor does legislative treatment in antiquity lead to the conclusion that there was no common law privilege. As was explained in chapter two, statutes were used by the King as a judge to answer petitions and clarify the common law.89 The Statute Articuli Cleri in 1315,90 which Sir Edward Coke cited in his Second Part of the Institutes as an authority for common law religious confession privilege with a treason exception,91 was “an attempt to delimit accurately the sphere of the lay and spiritual jurisdictions”92 as the King responded to petitions against alleged clerical abuse. While modern legislative treatment of a subject can still modify the pre-existent common law, many statutes have been passed in many jurisdictions to codify the common law in a simple, coherent and orderly way. Hence, though it was reasonable for Lamer CJ in Gruenke to rebut the applicant’s assertion that the existence of a religious confession privilege statute proved the existence of such a privilege in common law by pointing out the familiar modern legislative use of statutes to overrule judicial lawmaking,93 neither view of the relationship of common law and statute is complete even in the twenty-first century. In fact, the question of whether there was or is a common law religious confession privilege, or a confidential religious communications privilege, stands independent of any statute on the subject unless the statute was passed to expressly abrogate or extinguish such privilege. It has been one purpose of this book to address the question peripherally debated by Lamer CJ and counsel for the appellant in R v Gruenke – “whether there is a legal common law privilege for religious communications”.94

Medina, JM, “Evidence – ‘Is there a time to keep silence?’ – The priest-penitent privilege in Oklahoma” (1974) 27 Oklahoma LR 258; Campbell, S, “Catholic Sisters, Irregularly ordained women and the clergy-penitent privilege” (1976) 9 UC Davis LR 523; Yellin, JM, “The History and Current Status of the Clergy-Penitent Privilege” (1983) 23 Santa Clara LR 95; Smith, MC, “The pastor on the witness stand: Toward a religious privilege in the courts” (1984) 29 Catholic Lawyer 1; Mayes, JE, “Striking down the clergyman-communicant privilege statutes: Let free exercise of religion govern” (1986) 62 Indiana LJ 397; Mitchell, MH, “Must Clergy Tell? Child Abuse Reporting Requirements Versus the Clergy Privilege and Free Exercise of Religion” (1987) 71 Minn LR 723; Brocker, LL, “Sacred secrets: A call for the expansive application and interpretation of the clergy-communicant privilege” (1991) 36 NYL SLR 455; Horner, C, “Beyond the confines of the confessional: the priest-penitent privilege is a diverse society” (1997) 45 Drake LR 697; Mazza, MJ, “Should clergy hold the priest-penitent privilege?” (1998) 82 Marquette LR 171; Whittaker, LK, “The priest-penitent privilege: Its constitutionality and doctrine” (2000) 13 Regent ULR 145. 89 Supra, chapter two, pp. 39–42. 90 9 Edward II. St. 1. 91 Coke, Sir E, The Second Part of the Institutes of the Laws of England, New York, Garland Publishing Co, 1979, p. 629. 92 Holdsworth, WS, A History of English Law, 2nd ed, Boston, Little Brown & Co, 1923, Vol 1, p. 585. 93 R v Gruenke [1991] 3 SCR 263, 287–288. 94 Ibid, p. 287.

Theories About the Extinction 167 Lamer CJ’s summary was that the “conflicting interpretations of pre-Reformation history”95 urged by the parties to that appeal had been “inconclusive”,96 even though he was inclined to accept that neither the English nor the Canadian courts had been inclined to compel “members of the clergy to disclose confidential religious communications … as a matter of practice”.97 In the end, the Supreme Court of Canada saw the issue as a matter of policy and decided the matter by finding a “case-by-case” discretionary judicial discretion to be exercised as the weighed factual considerations arising dictated. Since neither the Manitoba nor Canadian legislatures have moved to overrule, abrogate or codify the Supreme Court of Canada’s decision in R v Gruenke, it can be stated that there is common law affirming a species of confidential religious communications privilege in that country. This even though Gruenke may be interpreted to affirm rather more narrowly, a judicial discretion to exclude evidence on grounds of public policy on a case-by-case basis. It is thus not accurate to say that the advent of a religious confession privilege in statute law proves either that such a privilege did not exist at common law or that the statute was necessary to redeem it. Does the ‘Non-Establishment’ of a State Church Extinguish Common Law Religious Confession Privilege? The simple answer to this question in Australia is that when the Commonwealth was established in 1901, the foundational decision not to establish any state church as had always existed in England, did not simultaneously extinguish freedom of religious practice. For the same constitutional provision which forbade the establishment of a state church also affirmed “free exercise of any religion”.98 It reads: The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.99

There has been no Australian case that addresses the question of whether the practice of religious confession or confidential communication for religious purposes is an example of free religious exercise protected by this constitutional provision. However it has been stated that a law that was expressly directed at proscribing an otherwise lawful religious practice, would breach this 95 96 97 98 99

Idem. Idem. Ibid, p. 288. The Australian Constitution, 1901, section 116. Idem.

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constitutional provision.100 It is also evident from even the limited Australian jurisprudence on section 116, that the purpose of legislation which has the effect of proscribing a religious practice will be a valid consideration when courts decide if a law (or even an administrative decision101) breaches the constitutional prohibition against Commonwealth interference in the free exercise of religion.102 Perhaps the advent of a federal religious confession privilege statute in Australia in 1995103 will serve to bulwark religious confession privilege in the future, since any statutory measure to abolish religious confession privilege after such express recognition, would face a stronger constitutional challenge than would be possible if religious confession privilege was deemed ambiguous at common law. It is also unclear whether a statute passed to privilege religious confession is an unconstitutional establishment of religion,104 though that seems unlikely since on the few occasions when the High Court has considered the meaning of the establishment clause, it has indicated that the clause only means that the Commonwealth cannot legislate to create a state church in Australia.105

100 Per Pincus J in Lebanese Moslem Association v Minister for Immigration and Ethnic Affairs (1986) 11 FCR 543, 577–578, though note that his decision was overturned by the Full Federal Court on appeal who considered that the Minister had not intended to prohibit the free exercise of the practice of Islam when he had deported an Imam. 101 Note that it was an administrative decision that was in contest in in Lebanese Moslem Association v Minister for Immigration and Ethnic Affairs (1986) 11 FCR 543 and in the appeal (Minister for Immigration and Ethnic Affairs v Lebanese Moslem Association (1987) 17 FCR 373). 102 In Adelaide Company of Jehovah’s Witnesses Incorporated v Commonwealth (1943) 67 CLR 116 Latham CJ considered the statement that “civil government … can deal as it pleases with any acts which are done in pursuance of religious belief without infringing the principle of freedom of religion” (p 124), and decided that is was open to the court “to determine whether a particular law is an undue infringement of religious freedom” (p 131) though he and Starke J decided that section 116 did not protect action subversive of social order (per Latham CJ at p. 122 and per Starke J at p. 155). Latham CJ also said that the use of the word “for” in section 116 “shows that the purpose of the legislation in question may properly be taken into account in determining whether or not it is a law of the prohibited character” (at para 10). More recently in Kruger v Commonwealth (1997) 190 CLR 1, the High Court variously affirmed that “[t]he purpose of the law may be taken into account in determining whether it infringes the free exercise clause” (Moens GA & Trone J, Lumb and Moens’ The Constitution of the Commonwealth of Australia, 6th ed, Butterworths, Australia 2001, para 803, p. 376) though Gaudron J made the even stronger suggestion that “[t]he purpose of the law is the sole criterion of validity” (Moens and Trone, idem). 103 Commonwealth Evidence Act 1995, s 127. 104 Note that this argument by Jane E Mayes in the United States, has not gained any apparent traction (“Striking down the clergy-communicant privilege statutes: let free exercise of religion govern” (1986) 62 Indiana LJ 397). 105 See for example the judgements of Barwick CJ and Gibbs J in Attorney-General (Vic); Ex rel Black v Commonwealth (1981) 146 CLR 559. Note also as explained by Moens and Trone “that the proclamation under the Marriage Act 1961 of religious denominations as recognised for celebrating marriage was not an ‘establishment’ of religion, especially having regard to the Commonwealth’s power over marriage” though an exercise of such Commonwealth power in favour of one particular denomination would likely offend the constitution (Moens GA & Trone J, Lumb and Moens’ The Constitution of the Commonwealth of Australia, 6th ed, Butterworths, Australia 2001, para 799, p. 373 discussing Nelson v Fish (1990) 21 FCR 430 per French J at p 434).

Theories About the Extinction 169 Though the Australian constitutional provision does not state that religious confession privilege is an example of protected religious exercise, and though there is no reported Australian judicial decision on point, the Supreme Court of Canada addressed a similar issue in Gruenke.106 Counsel for the appellant had suggested that “the value of freedom of religion, embodied in s 2(a) [of the Canadian Charter of Rights and Freedoms] … must necessarily be recognized in the form of a prima facie [confidential religious communications] privilege in order to give full effect to the Charter guarantee”.107 But Lamer CJ stated that: The extent (if any) to which disclosure of communications will infringe on an individual’s freedom of religion, will depend on the particular circumstances involved, for example: the nature of the communication, the purpose for which it was made, the manner in which it was made, and the parties to the communication.108

However, Lamer CJ also adopted the following words of an earlier Supreme Court of Canada decision: A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct. A free society is one which aims at equality with respect to the enjoyment of fundamental freedoms and I say this without any reliance upon s. 15 of the Charter.109

He then observed “that the case-by-case analysis”110 of confidential religious communications called for under the Charter, “must begin with a ‘nondenominational’ approach”,111 with the informality of some confessional practices not operating as a bar to the exclusion of some confidential communications as evidence.112 Lamer CJ had earlier quoted the Ontario Court of Appeal in the Church of Scientology No 6 case,113 which had observed that the fundamental freedom of conscience and religion now enshrined in s 2(a) of the Charter embraces not only the freedom of religious thought and belief but also “the right to manifest religious belief by worship and practice or by teaching and dissemination”. This protection will no doubt strengthen the argument in favour of recognition of a priest-and-penitent privilege.114

The Supreme Court of Canada’s statement that “a truly free society [is] one which can accommodate a wide variety of beliefs”115 is a characterisation of 106 107 108 109 110 111 112 113 114 115

R v Gruenke [1991] 3 SCR 263. R v Gruenke [1991] 3 SCR 263, 289. Idem. R v Big M Drug Mart [1985] 1 SCR 295, 336. R v Gruenke [1991] 3 SCR 263, 291. Idem. Idem. Re Church of Scientology and the Queen (no 6) (1987), 31 CCC (3d) 449. Ibid, p. 540, quoting in part Dickson CJ in R v Big M Drug Mart [1985] 1 SCR 295. R v Big M Drug Mart [1985] 1 SCR 295, 336.

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democratic religious tolerance that resonates with constitutional values around the world including in Australia and the United States. That the Supreme Court of Canada made this statement without relying upon section 15 of the Charter strongly suggests that a common law evidential privilege for confidential religious communications need not be inconsistent with secular state neutrality towards religion anywhere in the Anglo-American common law world. But could any residue of common law religious confession privilege extant in England and inherited (for example) by Australia before federation, have been extinguished before the guarantee of free exercise of religion was enshrined in the Australian Constitution? A series of lectures given by Keith Mason in October 1989116 explained that there has always been separation between church and state in Australia despite the familiar pronouncements in the inherited common law that “the Christian religion is part of the law of the land”.117 However, though he explained why the idea that Australia had “an inherently Christian legal system”118 was essentially a “myth”,119 he confirmed in his fourth lecture that Australia did originally inherit England’s “establishment”120 of the Church of England.121 In the early colonial years, that establishment saw the church function “as an adjunct to the military establishment”,122 among other reasons “to … keep alive amongst the bulk of the people such a sense of religion as will make them temperate and orderly, and domestic and contented”.123 But that establishment was gradually diluted by “the large numbers of non-Anglicans in the early colony”,124 many of whom “ministered more effectively to the convicts” and who “railed against the privileges of the Anglicans”.125 The dilution of establishment need not be traced in full, but began with the provision of state subsidies in connection with the church buildings of other denominations,126 and the provision of stipends for their ministers.127 It seems that the dilution of religious establishment in Australia was almost complete when judicial doubt was expressed about the validity of letters patent issued by the

116 Mason, K, Constancy and Change, Sydney, Federation Press, 1990. At the time he gave these lectures, Keith Mason was the New South Wales Solicitor-General. He has since served as President of the New South Wales Court of Appeal. 117 Mason, K, op cit, p. 4, citing Williams’ case (1797) How St Tr 654 at 703 per Kenyon CJ. 118 Mason, K, op cit, chapter one, pp. 1–30. 119 Idem. 120 Ibid, pp. 93–101. 121 Idem. However, Mason notes that “[t]he Presbyterians were on firm ground when they reminded those in power that there were not one, but two established churches in Britain” (ibid, p. 101). 122 Ibid, p. 102. 123 Ibid, p. 97, quoting William Wilberforce. 124 Ibid, p. 101. 125 Idem. 126 Ibid, p. 103. 127 Idem.

Theories About the Extinction 171 state to bishops128 and state aid for public worship was terminated in 1863,129 as was “all financial aid to Churches and Church schools by the latter part of the 19th century”.130 But in answer to the question of whether any residual common law religious confession privilege inherited from England was extinguished during the period when establishment was diluted, it is noteworthy that there was no statute passed to specifically or impliedly abrogate religious confession privilege. Ultimately, it was the debates surrounding the creation of an Australian Federal Constitution and the decision to adopt the American constitutional language to express the Australian separation of church and state131 that finalised the severance of church and state in Australia. While Australia’s greater secularism132 may explain the absence of the profound debates about the practical meaning of ‘the establishment clause’ that has contributed volumes to American jurisprudence,133 so that Mason could comparatively call section 116 “something of a dead letter”,134 Australia’s commitment to a version of democracy that increasingly respects multicultural values135 suggests that Canadian Charter jurisprudence136 will be more indicative of Australia’s future direction when it comes to adjudicating freedom of religion. It is also relevant that Canada’s highest court has articulated a contemporary basis for the recognition of religious values including the secrecy of religious confidences at common law.137 Though the American states have all passed religious confession privilege statutes to ensure similar tolerance,138 the United States federal jurisdiction 128

Idem. Idem. 130 Idem. 131 Ibid, pp. 103–105. 132 “Religion in American Life: The 2004 Political Landscape”, Pew Research Center for the People & the Press, Survey Reports, http://people-press.org/reports/print.php3?Page1D=757 (last visited 17 November 2003), where in 2003 87% of Americans are said not to doubt the existence of God, versus 81% in the late 1980s (inter alia) – statistics which are in marked contrast with the 1996 Australian census where 73.7% of the population claimed a religious faith, more than 16% expressly disclaimed such, and the balance either did not state or gave an unintelligible answer to the census question (1996 Census of Population and Housing, ABS Catalogue No. 20150, p 43). 133 The writer has been unable to find a significant body of scholarship about the meaning and practical effects of s 116 of the Australian Constitution, whereas several new articles every week on the US First Amendment are brought to his attention by LSRN on the internet. 134 Mason, K, op cit, p. 118. 135 Ibid, p. 105. 136 For example, the majority decision in R v Gruenke [1991] 3 SCR 263 noted that while the “freedom of religion embodied in s. 2(a)” of the Charter did not necessitate the recognition of a prima facie class religious communications privilege (ibid, p. 289), “both s. 2(a) and s. 27 [required] … that the case-by-case analysis must begin with a ‘non-denominational’ approach” (ibid, p. 291). 137 R v Gruenke [1991] 3 SCR 263. 138 Wright and Graham note religious confession privilege statutes in 4 states by 1850, 25 states by 1904, 29 states by 1938, 44 states in 1965 and blanket coverage in 1990 (Wright, CA, and Graham, KW, Federal Practice and Procedure: Evidence, Vol 26, § 5612, pp. 47–49). 129

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still recognises religious confession privilege at common law without the need for a statute in confirmation.139 This suggests that Major Clinton’s common law finding in 1813140 of an English common law religious confession privilege bulwarked by constitutional freedom of religion141 might have endured without statutes had state legislatures not responded with legislation142 when judges in search of all the evidence devalued the public interest in religious confidence and doubted the existence of religious confession privilege at common law. In any event, the High Court of Australia has repeatedly reaffirmed that clear statutory words are necessary to extinguish a common law privilege,143 and particularly a privilege that may have achieved status as a substantive common law, or even a human right.144 That jurisprudence will be discussed in chapter seven. In New Zealand Rex Ahdar has explained that on the very day the Treaty of Waitangi was signed namely 6 February 1840, there came an assurance of religious freedom from Governor Hobson because of concern from the Roman Catholic Bishop Jean Baptiste Pompallier, that the British Government would protect the Catholic Church.145 Ahdar quotes the Governor as having replied “Most certainly”146 with the further reassurance that if the Bishop’s wishes had been known earlier, a provision “would have been embodied in the treaty”147 itself. And so the Rev Henry Williams recorded; 139

Mullen v US (1959) 263 F.2d 275. The People v Phillips, Court of Sessions, New York (1813), reported in Allred, VC, “Privileged Communications to Clergymen” (1955) 1 The Catholic Lawyer 198. 141 Idem. 142 The first religious privilege statute in the world (Revised Statutes of N.Y. (1828), Pt. 3. c.7.tit.3 §72) is said to have been a response to the decision in The People v Smith, 2 City Hall Recorder (Rogers) 77 (Richmond County Court 1817) (also reported in Allred, VC, op cit, p 209) because the privilege allowed to a Catholic priest in Phillips (see note 140) was denied a Protestant minister in Smith (see Reese, S, “Confidential Communications to Clergy” (1963) 24 Ohio St LJ 55, 57). The Delaware Statute in 1961 is said to have been a response to a judicial denial of common law religious confession privilege (Reese, S, “Confidential Communications to Clergy” (1963) 24 Ohio St LJ 55) and Hansard reports in New South Wales confirm the statute in 1989 was a response to a well-publicised denial of religious confession privilege in R v Young (Daily Mirror (NSW) 17 August 1988; The Sydney Morning Herald, 3 April 1989 – as discussed in McNicol, SB, Law of Privilege, Australia, Law Book Co, 1992, p. 330). The timing of the first New Zealand and Victorian religious confession privilege statutes (1885 and 1890 respectively) suggest that they may have been a response to Sir George Jessel MR’s obiter comments in Wheeler v LeMarchant (1881) 17 Ch D 675, though the writer has not found any evidence to confirm this connection. 143 See, for example, Daniels Corporation v ACCC (2002) 192 ALR 561, paras 11, 43 and 132, confirming the decision in Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49. 144 Ibid, pp. 583–584, paras 85–86, per Kirby J. 145 Ahdar, Rex, Worlds Colliding, Burlington, Vermont, Ashgate Publishing Company, p. 9, quoting Pompallier, JBF Early History of the Catholic Church in Oceania, (1888) p. 63, and Buick, T Lindsay, The Treaty of Waitangi: How New Zealand Became a British Colony, 3rd ed., (1936), p 152 and Carleton, Hugh, The Life of Henry Williams, rev edn (1948) p. 314. 146 Ahdar, op cit, idem quoting Buick, op cit, p. 153 and Carleton, op cit, p. 315. 147 Idem. 140

Theories About the Extinction 173 The Governor wishes you to understand that all the Maoris who shall join the Church of England, who shall join the Wesleyans, who shall join the Pikopo or Church of Rome, and those who retain their Maori practices, shall have the protection of the British Government”.148

Ahdar further notes Imperial Instructions to Governor Hobson date 5 December 1840;149 the silence on the question of religion of the New Zealand Constitution Act passed at Westminster in 1852;150 the denial of an allocation of funds for the Anglican Bishop’s salary despite a recommendation from the Colonial Secretary of State, Earl Gray on 1 July 1854 to avoid departure from the principle of perfect civil equality of all the religious denominations;151 and confirmation from various New Zealand courts that there never was an establishment of any religion as the established church of New Zealand.152 Quoting Professor Lloyd Geering, Ahdar says New Zealand was more like ‘a Christian archipelago – a collection of denominational islands, each with its own shared set of beliefs’.153 And he quotes Vodanovich as support for his proposition that New Zealand was nonetheless a de facto Christian state154 until it crumbled in favour of a more fully secular state after the 1960s as New Zealanders withdrew “from active participation in any clearly recognizable religious group or institution”.155 In that context, it was most unlikely that so established a Christian religious practice as religious confession with its expectations of sacred confidentiality and even secrecy would come under pressure. And as is discussed in chapter ten, the advent of a statutory religious confession privilege in 1885, seems more like a precautionary reaction to Sir George Jessel’s dicta against the existence of such a privilege in 1881 that a response to any particular domestic denial of the privilege in a contemporary case. Once again then, it is not accurate to say that the absence of the established English Church in New Zealand had any affect whatever on the existence of a religious confession privilege at common law.

148

Idem. Ahdar, op cit, p. 10. 150 Idem. 151 Ibid, p. 11 quoting Davidson, Allan and Lineham, Peter, Transplanted Christianity, 2nd ed., (1989), p. 88. 152 Ahdar, op cit, pp. 11–13, citing Mabon v Conference of the Church of New Zealand [1998] 3 NZLR 513, 523 per Richardson P; Carrigan v Redwood (1910) 30 NZLR 244, 252 per Cooper J; Public Trustee v Commissioner of Stamps (1907) 26 NZLR 773, 779 per Cooper J; and Doyle v Whitehead [1917] NZLR 308, 314, per Stout CJ. 153 Ahdar, op cit, p. 12 quoting Geering, L, 2100: A Faith Odyssey – The Changing Face of New Zealand Religion (1995) p. 13 and “Pluralism and the Future of Religion in New Zealand” in Colless and Donovan (eds), Religion in New Zealand Society, 2nd ed., (1985), at p. 218. 154 Ahdar, op cit, p. 13 quoting Vodanovich, I, “Religion and legitimation in New Zealand: redefining the relationship between church and state” (1990) 3 Brit Rev of NZ Studies 52. 155 Ahdar, op cit p. 17 again quoting Geering, L, “New Zealand enters the Secular Age” in Nichols and Veitch (eds), Religion in New Zealand, 2nd ed (1983) 161, 173. 149

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Chapter Six The Dicta of Sir George Jessel MR

What then of the argument that Sir George Jessel MR and others have merely sociologically adapted the common law of England to “[t]he felt necessities of the time” where religious confession privilege is concerned?156 Holmes was perhaps the most memorable advocate of that interpretive theory when he wrote that “[i]t is revolting to have no better reason for a rule of law than that it was so laid down in the time of Henry VI.”157 He has also written: The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellowmen, have a good deal more to do than the syllogism in determining the rules by which men should be governed.158

and that The very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. I mean, of course, considerations of what is expedient for the community concerned. Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy.159

While these words published by Holmes in the United States in 1881 read like an ample defence of Sir George Jessel MR’s Wheeler v LeMarchant160 judgement across the Atlantic that same year, it must be observed that they tell only half the story. For while Sir George Jessel MR, a Jew,161 and Hill J in 1860 and a strong Ulster Protestant162 may have felt they captured majoritarian community sentiment when they made decisions which marginalised the Catholic 156

Holmes, OW, Jr, The Common Law, Howe M De W, editor, Cambridge Massachusetts, Harvard University Press, 1963, p. 5. 157 Holmes, OW, Jr, “The Path of Law”, in Holmes, Collected Legal Papers, Harcourt, Brace and Howe, 1920; repr Peter Smith, 1952, p. 167. 158 Holmes, OW, Jr, The Common Law, Howe M De W, editor, Cambridge Massachusetts, Harvard University Press, 1963, p. 5. 159 Ibid, p. 32. 160 Wheeler v LeMarchant (1881) 17 Ch D 675. 161 The son of a Jewish diamond merchant, Sir George Jessel MR was never admitted to the peerage (Simpson, AWB, ed, Biographical Dictionary of the Common Law, London, Butterworth, 1984, p. 280). See also Nokes, GD, “Professional Privilege” (1950) 66 LQR 88, 98 where he observes both that “no one would have suspected Sir George Jessel of a keen Christian bias” and that the uncertainty about the existence of religious confession privilege may have been the result of “a conflict of a different nature – a conflict between those unconscious prejudices of which the Bench can never be free”. 162 Per Coleridge LCJ in his 1890 letter to Gladstone about religious confession privilege (Coleridge, EH, Life and Correspondence of John Duke Lord Coleridge Lord Chief Justice of England, London, William Heinemann, 1904, Vol 2, p. 365). Note too that Nokes observed that “Lord Wynford’s [as Chief Justice Best from R v Radford and Broad v Pitt became] sympathy with Christianity led him sometimes into extravagance of language which offered a ready target for epigram” (Nokes, GD, “Professional Privilege” (1950) 66 LQR 88, 98).

Theories About the Extinction 175 religious practice of their day, there were many other judges who were and had been much more tolerantly inclined. And among those in favour of this tolerant privilege, Cockburn CJ in R v Castro (1874),163 Baron Alderson in R v Griffin (1853),164 Best CJ (later Lord Wynford) in R v Radford (1823)165 and Broad v Pitt (1828),166 Kenyon LCJ in Du Barré v Livette (1791),167 and Coleridge LCJ writing to Gladstone in 1890,168 rank very prominently indeed. While any attempt to weigh or balance the differing judicial views on whether there was a religious confession privilege in the nineteenth century can only be an arbitrary exercise, the commmentators have preferred the views of Sir George Jessel MR apparently because they were more thoroughly articulated. But how convincing was and is his logic? Though the integrity of his belief that there neither was nor ever had been a religious confession privilege cannot be doubted, did his view authoritatively decide what the law was for the future regardless of the past? The answer to this question lies in part at least in the common law doctrine of precedent which has been succinctly expressed as follows: Rationes decidendi of higher courts are binding on lower courts by virtue of the common law doctrine of precedent … Where the reasons for a court’s decision are contained in multiple judgments, it may be that no clear ratio decidendi can be discerned. In such a case, lower courts are only bound to apply the outcome of the case when faced with a fact situation not reasonably distinguishable from the case and not the reasoning of any of the judges who constituted the majority.169

Of obiter dictum, the same authors have written that “[j]udicial observations that do not form part of the reasoning of a case … are not binding on lower 163 R v Castro (1874) 2 Charge of Chief Justice 648, where Chief Justice Cockburn indicated that if a priest refused to disclose confessional material he would not be compelled to speak. 164 R v Griffin (1853) 6 Cox Cr Cas 219, where Baron Alderson said that conversations between the accused and the workhouse chaplain “ought not to be given in evidence”. This arguably ratio decidendi decision was discussed in detail in chapter four, pp. 115–116. 165 Unreported but referred to in R v Gilham (1828) 1 Moody 186; 168 ER 1235 where Chief Justice Best as he then was, prevented a clergyman apparently willing to testify, from giving evidence about a confession in his court. R v Radford was discussed in chapter four, pp. 102–103, and mentioned again in chapter five, p. 125. 166 Broad v Pitt (1828) 3 Carr & p. 518; 172 ER 528, where Chief Justice Best distinguished the decision supposedly against his R v Radford decision in R v Gilham with the observation that a priest may disclose confessional material if he chose, but that he would personally never compel such disclosure. The decision in Broad v Pitt was discussed in detail in chapter four, pp. 102–103, and again in chapter five, p. 125. 167 Du Barré v Livette (1791) 1 Peake 108; 170 ER 96, where Lord Kenyon said that he would have paused before he admitted the evidence allowed by his brother Justice Buller in R v Sparkes. These cases were discussed supra in chapter one, pp. 14–15, and chapter four, pp. 101–102, and mentioned in chapter five, p. 125. 168 Coleridge, EH, Life and Correspondence of John Duke Lord Coleridge Lord Chief Justice of England, London, William Heinemann, 1904, Vol 2, p. 365. Referred to in chapter four, pp. 119–120. 169 Butterworths Concise Australian Legal Dictionary, Nygh PE and Butt P, Eds, 2nd ed, 1998, pp. 365–366.

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courts nor subsequently on the court that makes them.”170 That this principle is elementary, ought not blind us to its application where the doctrine of religious confession privilege is concerned. Though Sir George Jessel MR’s dicta may have more precedential weight than those of the arguably lesser judges171 who had opined more casually in the opposite direction, yet the learned Master of the Rolls’ dicta remains as dicta and still manifests the following unresolved flaws. First, it cites no convincing authority.172 Secondly, his reasoning treats all evidentiary privilege as having a common genealogical origin when historically that is manifestly not the case.173 Thirdly, there is a conspicuous disregard of that religious tolerance which was born in the late eighteenth century, was legislated by various Acts of Parliament,174 and which was noticed by various other members of the judiciary.175 Though it is true that Sir George Jessel MR may have given expression to what his judicial colleagues had said in parliament in 1865 when they responded to press reports of the exclusion as evidence of Constance Kent’s confession to her clergyman at a depositions hearing,176 yet they were responding only to press reports and equally learned extra judicial opinion took the contrary view.177 170

Ibid, p. 312. The Chancery Act 1851, 14 & 15 Vict, Chap 83, set up two Lord Justices with the Master of the Rolls as the Court of Appeal in Chancery, to try and solve the bottlenecks which resulted when “appeals from subordinate equity judges were more than one Chancellor could despatch” (Plucknett, TFT, A Concise History of the Common Law, 5th ed, Boston, Little Brown, 1956, p 210. See also Baker, JH, An Introduction to English Legal History, London, Butterworths, 1970, p. 48). It is difficult to approximate the authority of judicial officers before and after the Judicature Acts since the Court of Appeal was a new creation. However it is clear that the rules of hierarchical precedent were more precise afterwards because the hierarchy of the courts themselves were more clearly defined. The ‘Judicature Acts’ are those two acts more fully named the Supreme Court of Judicature Act 1873 (36 & 37 Vic c 66) and the Supreme Court of Judicature Act 1875 (38 & 39 Vic c 77). 172 See chapter one, pp. 21–28, and chapter four, pp. 99–101. 173 For example, see chapter four, pp. 94–97. 174 For example The Roman Catholic Relief Acts of 1791 (31 Geo. 3, c 32) and 1829 (10 Geo. 4, c 7). See also supra pp. 161–164. Note also that Jeremy Bentham, whom Wigmore called “the greatest opponent of privileges” (Wigmore JH, Evidence in Trials at Common Law, Revised by John T McNaughton, Boston, Little Brown, 1961, Vol 8, p. 877) argued strongly that religious confession privilege should be recognised (Rationale of Judicial Evidence, New York and London, Garland Publishing Inc, 1978 reprint of the 1827 1st edition published by Hunt and Clarke, London, Vol 4, pp. 586–592). 175 Supra, notes 163 - 168 and supporting text. 176 Discussed in detail in chapter four, pp. 116–120. The case of R v Constance Kent (1865) was not reported because the defendant ultimately pled guilty to the murder charged but the case occasioned significant debate in the House of Lords and was the apparent stimulus behind the publication of Badeley’s pamphlet referenced supra, chapter four, pp. 118–119 and in this chapter, p. 162. 177 Coleridge LCJ (1880–1894) had acted as counsel for Constance Kent and in his letter to Gladstone about religious confession privilege, expressed his personal belief in the existence of an enduring religious confession privilege at common law after the Reformation though it “had never been decided” and that Willes J would have upheld it, though he doubted that “the English Judges” would have upheld it in 1865 (Coleridge, EH, Life and Correspondence of John Duke Lord Coleridge Lord Chief Justice of England, London, William Heinemann, 1904, Vol 2, p. 365). 171

Theories About the Extinction 177 But there are other arguments which suggest that reliance upon only Sir George Jessel MR’s obiter authority against religious confession privilege is questionable. Holmes’ suggestion that the “felt necessities of the time” and “the prejudices which judges share with their fellow-men, have a good deal more to do than the syllogism in determining the rules by which men should be governed”, is a two-edged sword where the development of the common law relating to religious confession privilege is concerned. For though Sir George Jessel MR may well have nutshelled the conservative judicial opinion of his time, yet the common law has continued to develop and has accepted more fulsome notions of religious tolerance particularly where “free exercise of any religion”178 is entrenched in modern constitutional instruments. Indeed, the advent of some of the first religious confession privilege statutes in the British Commonwealth beginning very soon after the Jessel dicta179 may be sociologically interpreted as a reaction against Sir George Jessel MR’s conservatism. The 1964 arguments of J Noel Lyon180 also militate against a favourable sociological interpretation of Sir George Jessel MR’s dicta. He observed that “[i]t is said by authoritative writers that statements made by a penitent to his priest during confession are not privileged at common law”,181 but questioned “whether any common law court ha[d] ever considered the best reason for granting such a privilege”.182 For Lyon, the admission into evidence of “confessions made to a priest would be so similar to admitting confessions made under duress to police that the idea should be expressly condemned by the common law.”183 He went on to observe that commentative characterisation of religious confession privilege as “a claim to protection for a confidential relationship”184 by analogy to legal professional privilege, 178

Australian Constitution, section 116. The New Zealand Evidence Further Amendment Act 1885 (49 Vict. No. 15) c 7 was passed four years after Wheeler v LeMarchant was decided and the Victorian Evidence Act 1890 (54 Vict. No. 1088 c 55 five years later. The first religious privilege statute in the United States was passed in New York in 1828 (Revised Statutes of N.Y. (1828), Pt. 3. c.7.tit.3 §72), eleven years after The People v Smith, 2 City Hall Recorder (Rogers) 77 (Richmond County Court 1817) had denied a common law religious confession privilege affirmed four years earlier in The People v Phillips, Court of Session, New York (1813). Both of these early New York cases are reprinted in full in Vincent Allred’s article, “Privileged Communications to Clergymen” (1955) 1 The Catholic Lawyer 198. Note however, that the very first British Commonwealth Statute confirming religious confession privilege dates to Newfoundland long before it was a province of Canada. That statute was “An Act to Amend the Law of Evidence passed 12th May 1856 (19th Victoria, Cap. 15, section 6) where it was simply stated that “A Clergyman, or Priest, cannot be examined as to any Confession made to him in his professional character”. 180 “Privileged Communications – Penitent and Priest” [1964–65] 7 Crim LQ 327. J Noel Lyon was then an Assistant Professor of Law at the University of British Columbia. 181 Idem. 182 Idem. 183 Idem. Lyon’s analogy is reminiscent of the analogy to legal professional privilege used by Baron Alderson when he ruled against the admission of a confession to the workhouse chaplain in R v Griffin (1853) 6 Cox Cr Cas 219. 184 Idem. 179

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Chapter Six misses the point of [legal professional privilege] … which is not designed to please the legal profession, nor merely to benefit the client. It is rather a recognition of the fact that in a constitutional democracy under the rule of law, lawyers perform the central role in the process of projecting law into the daily life of the community. When legal process replaces self-help, the lawyer and his client must become one with respect to information which is necessary to bringing the client’s affairs within that legal process … [and] to compel disclosure of information obtained for the purpose of properly bringing the client’s affairs under the law would be tantamount to compelling the client to give evidence against himself.185

Lyon however says that the absence of any analogous or blanket privilege for other confidential professional relationships does not dispose of the priestpenitent question.186 If it did, he asks “[i]n dealing with a suspect who is a devout Catholic, why should the police bother bringing him in and working him over with questions? Just let him go to his priest and then subpoena the priest as a witness.”187 It is then that Lyon makes the point (which reiterates McNicol’s notice of state recoil at the church/state intersection188) that the reason “this does not happen … [is] because our society has sufficient built-in restraints [which mean] that any police force or prosecutor’s office that went that far would be courting disaster.”189 Lyon concludes that even though “common law judges may never be called upon to make this natural extension of the admissibility of confessions”190 because “[o]ther restraints … keep the issue from arising in court”191, the “legal writers should stop stating categorically that no [religious confession] privilege exists at all”.192 It is also noteworthy that although Stone and Wells accepted Wigmore’s proposition that “practically all the decisive English authority is against”193 religious confession privilege, they preferred to cite Normanshaw v Normanshaw194 as their authority for that proposition rather than Sir George Jessel MR’s dictum in Wheeler v LeMarchant, which they set out in full very shortly before their reiteration of the Wigmore conclusion. That Normanshaw v Normanshaw is a doubtful authority for the non-existence of a religious confession privilege 185

Ibid, pp. 327–328. Ibid, p. 328. 187 Idem. 188 McNicol, SB, Law of Privilege, Australia, The Law Book Co, 1992, p. 330. 189 Lyon, op cit, p. 328. 190 Ibid, p. 330. 191 Idem. 192 Idem. 193 Stone, J, Evidence, Its History and Policies, Revised by WAN Wells, Sydney, Butterworths, 1991, p. 586. It will be remembered that Wigmore’s original statement was that “since the Restoration, and for almost two centuries of English practice, the almost unanimous expression of judicial opinion (including at least two decisive rulings) has denied the existence of a [religious confession] privilege” (Wigmore JH, Evidence in Trials at Common Law, Revised by John T McNaughton, 1961, Vol 8, p. 869). 194 Normanshaw v Normanshaw (1893) 69 LT 468. 186

Theories About the Extinction 179 in modern common law, has already been demonstrated in chapters four and five.195 Conclusion None of the theories canvassed in this chapter prove that religious confession privilege has been extinguished from the common law. A thorough legal analysis of all the historical evidence that can be mustered in support of the idea that religious confession privilege was extinguished from English common law sometime after the Reformation and before the end of the eighteenth century, leaves the argument wanting. There is nothing conclusive. If there was a privilege before the Reformation as this book demonstrates, then it survived the Reformation and has not been abrogated by statute or canon law passed since. Whether the historical ‘privilege’ existed as an immunity or a privilege, it arguably endures as a fundamental right because it is a necessary corollary of any meaningful free exercise of religion. Whether it does so exist and whether it can now only be extinguished by clear words or necessary implication in statute196 is a matter which will be discussed in chapter seven in connection with the state of the relevant law in Australia. That religious confession privilege survived the Reformation is also compelling in disposing of the theory that the creation of a new nation with a British common law inheritance without an established church, extinguished religious confession privilege. For even if the new nation’s constitution did not guarantee free exercise of any religion, that new nation’s common law inheritance will have included religious confession privilege. It is also revolting to suggest that pure religious prejudice could have extinguished the privilege without statutory confirmation – a fact which enlightened and objective commentary in the nineteenth century197 pointed up. This leaves only the argument that religious confession privilege had clearly gone since multiple legislatures have perceived a need to pass statutes to establish it. This chapter has suggested that no two religious confession privilege statutes have ever had an identical raison d’etre. While certainly some laws are passed to abrogate and completely rewrite the common law, others seek to simplify by codification and other statutes still, merely make adjustments at the edges. In any event, in context it is doubtful that Lamer CJ in R v Gruenke198

195

Chapter four, pp. 109–111; chapter five, pp. 126–129. Daniels Corporation v ACCC (2002) 192 ALR 561, paras 11, 43 and 132. 197 Bentham, J, Rationale of Judicial Evidence, New York & London, 1978, Garland Publishing Inc (reprint of the 1827 edition published by Hunt and Clarke, London), Volume IV, pp. 586–592. See also Best, WM, A Treatise on the Principles of Evidence, London, S Sweet, 1849, pp. 459–460. 198 R v Gruenke (1991) 3 SCR 263, 288. 196

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was seriously proposing the view that there was no religious confession privilege at common law because some legislatures have passed laws to put its existence beyond doubt. Rather, it is more likely that he was simply disagreeing with Gruenke’s counsel’s strong contrary submission that statutory confirmation of religious confession privilege proved that it did exist at common law. Chapter seven will now discuss religious confession privilege in contemporary Australia.

CHAPTER SEVEN

RELIGIOUS CONFESSION PRIVILEGE AT COMMON LAW IN AUSTRALIA Introduction This book has identified what the common law is so far as religious confession privilege is concerned, without significant reference to case law in Australia. There are two reasons for that. Firstly, there is very little recorded judicial comment in Australia that treats the issue at all; and second, the advent of statutory religious confession privilege in Victoria, Tasmania, the Northern Territory, New South Wales and the Commonwealth has meant that courts in those jurisdictions have not needed to review the common law, since their statutory privileges were passed into law. It is beyond the scope of this book to ascertain the “other” possible reasons for the dearth of religious confession privilege cases in Australia, though it is noted that those reasons certainly include the careful wish of the various arms of the state to avoid unnecessary conflict with the church1 and the sacrosanctity with which Australian clergy generally have treated confidences reposed in them.2 There have, however, been obiter dicta comments in three significant cases which bear upon the privilege which provide some insight into how an Australian court without a religious confession privilege statute, might treat a claim of religious confession privilege. While Crisp J made reference to the existence of the privilege at common law in the Tasmanian Supreme Court in a case that concerned Tasmania’s statutory religious confession privilege,3 the references to religious confession

1 McNicol, SB, Law of Privilege, Australia, The Law Book Co, 1992, p. 330, where Suzanne McNicol recognises the New South Wales Police Minister’s statement accompanying the introduction of the Bill to create a statutory privilege in New South Wales in 1989, where he said the statutory privilege would realise “[t]he Government[‘s] … concern to minimise the possible areas of conflict” between church and state (Parliamentary Debates (N.S.W.), Legislative Council, 21 November 1989, p. 12,805, per The Hon EP Pickering). 2 The Australian Law Reform Commission took notice of this apparent reason for a dearth of such cases when it said that “a law which enables a court to require members of the clergy to give evidence of confidential communications will be universally disobeyed by the clergy … It will be a law which will be totally unenforceable. Attempts to enforce it will simply result in incarceration of the clergy and thereby generate unnecessary friction between Church and State” (ALRC, Report No 38 (1987), Vol 1, para 212, p. 120). 3 R v Lynch [1954] Tas SR 47, where Crisp J said: At common law I have no doubt [religious confession privilege] was confined to a ritual confession made according to the discipline of

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privilege by Sir Owen Dixon J in McGuinness v Attorney-General (Vic)4 in 1940; by three5 of the seven members of the High Court in Baker v Campbell6 in 1983 and by Spigelman CJ in the New South Wales Court of Criminal Appeal in 19997 are more likely predictive. However, the unanimous High Court decision in Daniels Corporation v ACCC8 in 2002 affirming legal professional privilege as an important common law immunity9 which could not be abrogated without clear words or a necessary implication to that effect,10 includes reasoning both relevant and predictive of likely contemporary Australian judicial opinion were religious confession privilege to arise for decision in the nation’s highest court. This chapter will also review in detail, three ideas seeded by current judicial opinion, that seem likely to have signifi cant influence on the argument that the High Court would have to consider in such a case. Those three ideas are firstly, that the High Court of Australia will consider international human rights obligations which Australia has assumed by virtue of its ratification of various human rights instruments including several which affirm freedom of religious belief and practice. Second, that the implication encouraged by Daniels that the familiar distinction between ‘immunity’ and ‘privilege’ is no longer hard and fast and that ‘immunity logic’ is therefore transferable into privilege contexts particularly where there are constitutional issues at stake. And finally, the notion that a consistent and preponderant message from evidence statutes in some Australian jurisdictions will exercise ‘gravitational pull’ on the common law in jurisdictions without similar statutory provisions – this despite the misinformed view that the High Court’s decision in Esso Australia Resources v Federal Commissioner of Taxation11 abolished that doctrine as it had begun to flourish in Akins v Abigroup Ltd12 and Adelaide Steamship Co. Pty Ltd v Spalvins.13 Chapter seven concludes by suggesting that the High Court of Australia would likely affirm the existence of a discretionary religious communications privilege were an appropriate case to raise the matter. But I also observe that

the particular faith in so far as a privilege existed at all. I do not wish to be taken as deciding that nothing other than a ritual confession is covered by the section. It may be that in our statute we have gone further … but here the confession was not made for any spiritual purpose. 4 McGuinness v Attorney-General (Vic) (1940) 63 CLR 73. 5 Gibbs CJ, Mason and Dawson JJ. 6 Baker v Campbell (1983) 153 CLR 52. 7 R v Young (1999) 46 NSWLR 681. 8 Daniels Corporation v ACCC (2002) 192 ALR 561. 9 Ibid, paragraphs 11 (per Gleeson CJ, Gaudron, Gummow and Hayne JJ), 44 (per McHugh J), 85 (per Kirby J) and 132 (per Callinan J). 10 Ibid, paragraphs 11 (per Gleeson CJ, Gaudron, Gummow and Hayne JJ), 43 (per McHugh J), 88 (per Kirby J) and 132 (per Callinan J). 11 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49. 12 Akins v Abigroup Ltd (1998) 43 NSWLR 539. 13 Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360.

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lower and even intermediate level courts in Australian jurisdictions without religious confession privilege statutes (Queensland, South Australia and West Australia) remain unlikely to recognise either a religious confession privilege or a religious communications privilege at common law until the High Court has decreed upon the subject. McGuinness v Attorney-General (Vic)14 In this 1940 case, a newspaper editor sought to justify his refusal to answer questions put to him by a Royal Commissioner. In rejecting his claim, Dixon J said: The law was faced at a comparatively early stage of the growth of the rules of evidence with the question how to resolve the inevitable conflict between a necessity of discovering the truth in the interests of justice on the one hand and on the other the obligation of secrecy or confidence which an individual called upon to testify may in good faith have undertaken to a party or other person. Except in a few relations where paramount considerations of general policy appeared to require that there should be a special privilege, such as husband and wife, attorney and client, communications between jurors, the counsels of the Crown and State secrets, and by statute, physician and patient and priest and penitent, an inflexible rule was established that no obligation of honour, no duties of nondisclosure arising from the nature of a pursuit or calling, could stand in the way of the imperative necessity of revealing the truth in the witness box. Claims have been made from time to time for the protection of confidences to trustees, agents, bankers, and clerks, amongst others, and they have all been rejected.15

Dixon J’s observations about religious confession privilege are a little curious. Certainly the demands of his decision about a journalist’s claim to privilege merited no more attention to religious confession privilege than was given, but he raises more questions about religious confession privilege than he answers. For example, was he denying the existence of religious confession privilege in a jurisdiction without a religious confession privilege statute? Was he aware that some Australian jurisdictions had not then passed religious confession privilege statutes?16 Or was he suggesting that the public interest factors which might have been argued to justify a religious confession privilege at common law were not “paramount” enough – and hence the advent of statutes in the area? It is also possible that Dixon J foresaw the modern notion that statutes can influence common law development in other jurisdictions by their

14

McGuinness v Attorney-General (Vic) (1940) 63 CLR 73. Ibid, pp. 102–103. 16 Only statutes in Victoria (Evidence Act 1890, c 55 – 54 Vict. No. 1088), Tasmania (Evidence Act 1910,s 96 – 1 George V. No. 20), and the Northern Territory (Evidence Ordinances 1939, section 12(1) ) existed at the time the judgement was handed down. 15

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“gravitational pull”.17 Though unlikely, it is possible that Dixon J was presciently inferring that the recognition of religious confession privilege in three Australian jurisdictions at that time enabled the common law recognition of religious confession privilege in those jurisdictions which had not passed statutes to expressly recognise it in the interests of one seamless common law in Australia. It is more likely that he was simply confirming that religious confession privilege did not exist in Australia except as a creation of statute, since his reference to the rejection of claims for “protection of confidences to trustees, agents, bankers and clerks amongst others”18 reads like a quotation from English commentaries in his era, which normally included clergy in the “unprotected” list.19 There is also a question as to whether he was referencing religious confession privilege or a broader confidential religious communications privilege, as was almost contemporaneously recognised in Ireland20 – even though all of the Australian statutes treating such privilege at all still reference “confessions” as their subject matter. While it is doubtful that this obiter statement would provide a contemporary Australian court with much assistance if it were required to decide a religious confession privilege case, it is fair to infer that it would encourage a narrow interpretation of even statutory privileges. Both Spigelman CJ and Beazley JA quoted and interpreted this same passage21 on their way to different decisions about the extent of the statutory sexual assault communications privilege claimed in R v Young in 1999.22 And when the High Court was asked in Baker v Campbell23 to decide whether legal professional privilege protected documents from seizure by police executing a search warrant, only Gibbs CJ referred to McGuinness and then only as authority for his proposition that “the public interest in discovering truth prevails over the private duty to respect confidence”.24 But with his two brethren who did reference religious confession privilege in Baker v Campbell,25 Gibbs CJ did signal that the view of the High Court was ‘developing’ where claims of privilege or immunity were asserted. 17 The quoted words are original to Mason, P, in Akins v Abigroup Ltd (1998) 43 NSWLR 539, 547–548. Both Beazley JA and James J reference the concept in their judgements in R v Young (1999) 46 NSWLR 681, respectively at p. 719 para 205 and p. 743 para 326. 18 McGuinness v Attorney-General (Vic) (1940) 63 CLR 73, 103. 19 For example, Stephen’s Digest of the Law of Evidence, which was printed in 12 editions between 1876 and 1948; Phipson’s Law of Evidence, published in 13 editions between 1892 and 1982, and of course Wigmore on Evidence, the third edition of which was published in 1940, the year when Sir Owen Dixon J made his decision in McGuinness v Attorney-General (Vic). 20 Cook v Carroll [1945] Ir. Rep. 515, per Gavan Duffy J. 21 R v Young (1999) 46 NSWLR 681 per Spigelman CJ, pp. 698–699, para 85, and per Beazley JA, pp. 708–709, para 144. 22 R v Young (1999) 46 NSWLR 681. 23 Baker v Campbell (1983) 153 CLR 52. 24 Baker v Campbell (1983) 153 CLR 52, 66. 25 Baker v Campbell (1983) 153 CLR 52. Mason and Dawson JJ also made comments about religious confession privilege.

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Baker v Campbell Decided before the abolition of the sole purpose test26 as the required premise for a sustainable claim of legal professional privilege,27 the High Court split 4–328 in upholding the claim of privilege against the police search warrant. And of the three judges who did reference religious confession privilege in passing, only Dawson J sided with the majority in the result. Gibbs CJ said that the reason privilege did not extend to communications between priest and penitent at common law was because religious confession privilege was not “fundamental to the administration of justice” as was legal professional privilege.29 He did however state that this justification of legal professional privilege had its roots in public interest and it was the “higher public interest in the suppression of crime”30 which justified his recommended abrogation of legal professional privilege in this case. Dawson J similarly said that the reason there was no religious confession privilege was because unlike legal professional privilege, religious confession privilege was not “part of the functioning of the law itself ”.31 Mason J wished to confine legal professional privilege to “communications in aid of litigation and communications made for the purpose of giving and obtaining legal advice”32 to avoid an “evaluation of the competing considerations which lurk beneath the surface”33 of legal professional privilege. But he doubted that communications for giving and obtaining legal advice had any better justification than could be advanced in favour of “communications for advice between client and accountant or marriage counselor … with litigation in view”34 or “doctor-patient and priest-penitent communications”.35 Indeed, 26 The so-called ‘sole purpose test’ was replaced by the’ dominant purpose test’ by the High Court’s decision in Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49. Since this decision, for a claim of legal professional privilege to apply to documents, it has been necessary to demonstrate that the dominant purpose for which the document was created was to enable the seeking or giving of legal advice. The previous ‘sole purpose test’ had been laid down in Grant v Downs, see note 27. 27 It was held in Grant v Downs (1976) 135 CLR 674 “that legal professional privilege is confined to documents which are brought into existence for the sole purpose of their being submitted to legal advisers for advice or use in legal proceedings” (Baker v Campbell (1983) 153 CLR 52, 60 per Gibbs CJ). 28 The split was really 5–2 since Brennan J said that documents in the solicitor’s office that were “merely expressions of legal opinion” and “documents brought into existence solely for use in litigation that is pending, intended or reasonably apprehended” were privileged and should not be produced (Baker v Campbell (1983) 153 CLR 52, 110). 29 Baker v Campbell (1983) 153 CLR 52, 65–66. 30 Baker v Campbell (1983) 153 CLR 52, 69. 31 Baker v Campbell (1983) 153 CLR 52, 128. Note that these statements resonate with one of the reasons why Lamer CJ would not concede a class privilege to confidential religious communications in R v Gruenke (1991) 3 SCR 263, 289). 32 Baker v Campbell (1983) 153 CLR 52, 75. 33 Idem. 34 Idem. 35 Idem.

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he said “[t]he need for preservation of doctor-patient and priest-penitent confidentiality seems to be as strong as the need for preservation of lawyer-client confidentiality in the area of advice”.36 That the law relating to privilege generally was in a state of flux when Baker v Campbell was decided, is also manifest by how two of the judges analogised from legal professional privilege to self-incrimination privilege. Mason J said that self-incrimination privilege rested on a “more enduring foundation”37 than legal professional privilege. Dawson J said further that self-incrimination privilege was “too fundamental a bulwark of liberty to be categorized simply as a rule of evidence”,38 that legal professional privilege “stems from a right which is no less fundamental”39 and that the two rights were conceptually connected.40 What does this Baker v Campbell obiter discussion of religious confession privilege contribute to understanding how a case involving a confidential religious communication might be decided today? It confirms once again that the discrete origins and continued existence of religious confession privilege are not well understood, but it also confirms that legal professional privilege and self- incrimination privilege are improperly treated as mere rules of evidence when their historical origins are understood and taken into account. Those privileges can be said to exist as common law rights so firmly entrenched as Stephen, Mason and Murphy JJ said of legal professional privilege in Grant v Downs that they are “not to be exorcised by judicial decision”.41 The question is, will a proper understanding of the historical origins of religious confession privilege lead to the same conclusion? Namely that religious confession privilege is also a common law right and not a mere rule of evidence. The narrow interpretation of new state legislation creating a sexual assault communications privilege,42 by the New South Wales Court of Appeal decision in R v Young43 followed by further state legislation in the wake of the decision,44 demonstrates that the law relating to privilege was still in a state of flux when that decision was handed down sixteen years after Baker v Campbell. That R v Young was decided the same year that the High Court replaced the

36

Idem. Baker v Campbell (1983) 153 CLR 52, 81. 38 Baker v Campbell (1983) 153 CLR 52, 128. 39 Idem. 40 Idem. 41 Grant v Downs (1976) 135 CLR 674, 685. 42 Division 1B of Pt 3.10 of the New South Wales Evidence Act 1995 was inserted in the Act by the Evidence Amendment (Confidential Communications) Act 1997 (No 122) and commenced on 1 January 1998 (R v Young (1999) 46 NSWLR 681, p. 726, para 244, per James J). 43 R v Young (1999) 46 NSWLR 681. 44 R v Young was reversed by the Criminal Procedure Amendment (Sexual Assault Communications Privilege) Act 1999 (NSW) which inserted a new Part 13 into the Criminal Procedure Act 1986 (NSW). 37

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‘sole purpose test’ with the ‘dominant purpose test’ in Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia45 simply underscores the fact. And though further New South Wales legislation about sexual assault communications in the wake of the majority decision has reduced the precedential value of R v Young as a guide to understanding statutory sexual assault communications privilege in New South Wales, the reasoning on privilege generally remains instructive. R v Young46 Spigelman CJ led the 4–1 majority in holding that a statute amending the New South Wales Evidence Act the previous year47 was not specific enough to deny Young’s access to the records of the various counsellors who had attended his accuser in a sexual assault case. Beazley JA dissented. However, none of the three other majority judges48 wholly adopted the reasoning of Spigelman CJ. After acknowledging “because the truth can cost too much”,49 that “the common law recognises a specific list of privileges [against disclosure, which] list has been modified by statute”,50 to include “clergy-communicant privilege”,51 Spigelman CJ noted that each category “reflect[ed] a different form of public policy … with its own distinct incidents”.52 He then considered the Supreme Court of Canada’s approach to the recognition of new categories of evidentiary privilege (including a brief consideration of the Wigmore criteria in Gruenke’s case53), but concluded “that the approach to determining these matters, propounded by Wigmore and adopted in Canada, is not open to an intermediate court of appeal in Australia”.54 He then cited the full quote from Dixon J in McGuinness v Attorney-General (Vic)55 cited above, and observed: The common law refused to afford privilege to exceptional sensitive confidential relationships. To many people, even in this secular age, and to the overwhelming majority of people in times past, there was no more intimate or personal

45 Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49. The nature of the two tests is briefly referenced supra at notes 26 and 27. 46 R v Young (1999) 46 NSWLR 681. 47 See note 44. 48 Abadee, Barr and James JJ. 49 R v Young (1999) 46 NSWLR 681, 696, para 74, per Spigelman CJ, alluding to Knight Bruce V-C in Pearse v Pearse (1846) De G & Son 12 at 28–29; 63 ER 950 at 957. 50 R v Young (1999) 46 NSWLR 681, 697, para 76. 51 Ibid, para 77. 52 Idem. 53 R v Gruenke [1991] 3 SCR 263, discussed supra in chapter five, pp. 144–148. 54 R v Young (1999) 46 NSWLR 681, 698, para 84. 55 McGuinness v Attorney-General (Vic) (1940) 63 CLR 73.

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Chapter Seven communication than that which occurred with a priest. No such privilege was recognised until statutory modification: see Wilson v Rastall (1792) 4 TR 753 at 759–760; 100 ER 1263 at 1206–1287; Normanshaw v Normanshaw and Measham (1893) 69 LT 468; McNicol, Chapter 5.56

He concluded “that, by a process of induction, Dixon J stated the common law rule … [which though not] replicated in the other judgements in McGuinness … does represent, in my opinion, the common law rule in Australia … [and again a]n intermediate appellate court should be slow to develop a new category of privilege”.57 While Beazley JA quoted the same statement from Dixon J in McGuinness58 and other sources to acknowledge that confidentiality simpliciter did not give rise to an evidentiary privilege, she cited extensive authority for her proposition that evidential immunity might be extended after balancing competing interests.59 She concluded with Lord Hailsham in D v NSPCC60 that “[t]he categories of public interest are not closed and must alter from time to time whether by restriction or extension as social conditions and social legislation develop”.61 She noted McLachlin J’s case-by-case approach in M v Ryan,62 which required “a balancing [of competing public interests] to determine whether the particular documents should be disclosed”63 and expressed her opinion that balanced public interest in New South Wales, the “gravitational pull”64 of statute law in other Australian jurisdictions and the need to ensure there was “one [consistent] common law for Australia”,65 justified the extension of “immunity … to the class of documents the subject of the present claim”.66 For Spigelman CJ, there was no common law religious confession privilege. However, his reference to McNicol67 fails to acknowledge her statement that 56

R v Young (1999) 46 NSWLR 681, 699, para 88. Ibid, pp. 699–700, paras 90–91. 58 Ibid, p. 708, para 144. 59 Rogers v Home Secretary [1973] AC 388; D v NSPCC [1978] AC 171; Conway v Rimmer [1968] AC 910; Re D (Infants) [1970] 1 WLR 599; [1970] 1 All ER 1088; Science Research v Nassé [1980] AC 1028, claim rejected; R v K (1993) 97 Cr App R 342; Relationships Australia v Pasternak (1996) 133 FLR 462; Finch v Grieve (1991) 22 NSWLR 578; B v N (1994) 35 NSWLR 140; Howe v State of South Australia (1998) 196 LSJS 182; R v Bull (1997) 17 SR (WA) 364; M v L [1997] 3 NZLR 424, claim rejected; Jaffee v Redmond 518 US 1 (1996); Wolfe v United States 291 US 7 (1934); Hawkins v United States 358 US 74 (1958); M v Ryan (1997) 143 DLR (4th) 1. 60 D v NSPCC [1978] AC 171, 230. 61 R v Young (1999) 46 NSWLR 681, 711, para 163, quoting Lord Hailsham in D v NSPCC. 62 M v Ryan (1997) 143 DLR (4th) 1. 63 R v Young (1999) 46 NSWLR 681, 716, para 188. 64 Ibid, p. 719, para 205, quoting Mason, P, in Akins v Abigroup Ltd (1998) 43 NSWLR 539 at 547–548. Whether statutes in Australian states exert “gravitational pull” upon the common law in other Australian states without such statutes, is discussed infra pp. 207–210. 65 Ibid, p. 720, para 211, citing Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 563. 66 Ibid, p. 721, para 215. 67 Ibid, p. 699, para 88. 57

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“there is a paucity of authority”68 for this conclusion, and the authorities he chose for that statement of the law do not establish the attributed point. For both of the cases he cited contain only obiter statements; the first in a legal professional privilege case,69 and the second in a non-confessional religious communications case70 where the observations of Jeune P can be interpreted to support the existence of a discretionary religious communications privilege.71 Nonetheless, it might be submitted that other reasoning in Spigelman CJ’s judgement provides room for modern recognition of religious confession privilege in the public interest. For even though he rejected the case-by-case discretionary Canadian approach,72 he said that “[t]he recognition of a new category of privilege … was appropriate [when it reflects] so widely held an opinion, that the court’s reasoning can be described in terms of ‘recognition’ rather than ‘creation’ ”.73 Beazley JA did not treat religious confession privilege at all save in her quotation from Dixon J in McGuinness.74 She distinguished his reasoning with modern authority from various jurisdictions,75 noted the favoured discretionary case-by-case approach in Canada,76 but nonetheless preferred the creation of a new class of immunity in R v Young for reasons of pure countervailing public interest.77 As noted at the commencement of this consideration of R v Young, the three other majority judges chose not to wholly ally themselves

68

McNicol, SB, Law of Privilege, Australia, The Law Book Co, 1992, p. 324. R v Young (1999) 46 NSWLR 681, 699, para 88 referring to Wilson v Rastall (1792) 4 TR 753; (1792) LTR 753; 100 ER 1283; (1775–1802) All ER 597, discussed supra in chapter four, pp. 151–153, where it was noted that the citation of this case as authority for the proposition that there was no religious confession privilege in English common law by the turn of the eighteenth century is unsound since religious confession privilege is not even mentioned obiter in the decision. 70 Idem, referring to Normanshaw v Normanshaw (1893) 69 LTR 468, discussed supra in chapter four, pp. 109, 111, and chapter five, pp. 126–129. 71 Supra, chapter five, p. 128. 72 Spigelman CJ noted the evolution of this approach (beginning with Slavutych v Baker (1975) DLR (3d) 224 at 228; R v Gruenke [1991] 3 SCR 263 at 286, and in relation to sexual assault counselling privilege, in M v Ryan (1997) 143 DCR (4th) 1) in his judgement in R v Young at pages 697–698. It is noteworthy that while Lamer CJ in Gruenke did indeed say that the application of the Wigmore criteria was not “carved in stone”, as Spigelman CJ pointed out (R v Young, p. 698, para 81) the case-by-case discretionary approach (rather than the category or class approach) that has evolved since it originated in Slavutych v Baker in 1975 has become something of a template in the Canadian Supreme Court’s consideration of privilege and immunity cases. 73 R v Young (1999) 46 NSWLR 681, 700, para 93. 74 McGuinness v Attorney-General (Vic) (1990) 63 CLR 73, cited by Beazley JA in R v Young (1999) 46 NSWLR 681 at p. 708, para 144. 75 R v Young (1999) 46 NSWLR 681, 708–716. See note 59 for a list of all her authorities. 76 Ibid, pp. 715–716. 77 Ibid, p. 721, para 215. Note also that L’Heureux-Dubé J, who provided the minority judgement in R v Gruenke [1991] 3 SCR 263, 295–316), for herself and Gonthier J, also preferred the “class or category” approach to the creation of evidential privileges and immunities in the common law, in the interests both of certainty and long-term civil liberty. 69

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with the reasoning of Spigelman CJ78. Abadee and Barr JJ together and more simply, rested their joint decision on the simple insight that it was for parliament, not the court, to make “such a significant change in the rights of accused persons”,79 and that in confining the new immunity for sexual assault counsellors to evidence adduced at trial, the legislature had affirmatively left an accused person’s pre-trial investigation rights intact.80 James J rested his decision primarily on the appropriate method of statutory interpretation,81 eschewing the ambulatory methods82 that had been urged on him by counsel for the respondent and those other interested state parties involved83 to ensure that the legislation hit its target.84 He decided then that recognising “a new category of public interest immunity [in this case]”85 would unnecessarily complicate the law, since several different “balancing process[es]”86 could be required to determine the treatment of evidence depending on whethers 126H(3), s 126J,

78 Abadee and Barr JJ provided a joint judgement concurring in the result with the separate majority judgements of Spigelman CJ and James J. 79 R v Young (1999) 46 NSWLR 681, 722, para 220. 80 Ibid, p. 723, para 229. 81 James J accepted that Freeman J’s (the first instance judge who interpreted the legislation to deny Young’s access to the notes of the various sexual assault counsellors who had attended on his accuser) indirect, derivative or analogical reading of the statute was available on the basis of decisions then available in Telstra Corporation Ltd v Australia’s Media Holdings [No 1] (1997) 41 NSWLR 277; Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360 and Akins v Abigroup Ltd (1998) 43 NSWLR 539. However, the Full Federal Court in Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1998) 53 FCR 311 and the High Court in BT Australasia Pty Ltd v State of New South Wales (High Court of Australia, 3 December 1998, judgement reserved) had since effectively decided that it was wrong to read a statute derivatively if that derivative reading would modify the underlying common law (per James J, pp. 724–730, paras 260 and 261). Ultimately, no decision was issued by the High Court in the BT Australasia case because the matter was settled (R v Young per James J at p. 730, para 261). In the Esso Australasia Resources case, the High Court reversed the Federal Court and held, overruling Grant v Downs (1976) 135 CLR 674, that the dominant purpose test, and not the sole purpose test, would henceforward be the common law test for claiming legal professional privilege settling an “issue that ha[d] divided the courts for some years”(R v Young per Spigelman CJ at p. 692, para 47). The High Court also effectively affirmed the view of the majority of the NSW Court of Criminal Appeal in R v Young that the statutory phrase “adduced in evidence” did not abrogate an accused person’s common law right to pretrial discovery. The Esso case is discussed in more detail infra (pp 302–307) in relation to the so-called ‘gravitational pull’ of statutes on common law development. 82 Spigelman CJ used the word “ambulatory” in his judgement in R v Young (para 15 and 32) to describe an approach to the process of judicial interpretation, but he did not believe it justified “the additional words proposed in the present case” (ibid, para 16) as, in his opinion, they went beyond the clear intention of Parliament in the words actually used. 83 The appellant’s interpretation of the statute eventually upheld by the New South Wales Court of Criminal Appeal was opposed not only by the Crown, but by separate legal teams from the office of the New South Wales Attorney-General and the New England Area Health Service (ibid, paras 4 and 119). 84 This description of the proper judicial approach to statutory interpretation attributed to Lord Diplock was quoted by James J (p 734, para 288) who was himself quoting McHugh JA (as he then was) in Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404, 421–424. 85 R v Young (1999) 46 NSWLR 681, 749, para 354. 86 Idem.

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s 130 or even the common law applied to the adduction of evidence or pretrial processes.87 In any event, Parliament could intervene to clarify if it was not satisfied with the court’s decision.88 Despite the three different majority judgements, the court’s view that a defendant’s common law rights were not abrogated without clear statutory language was clear enough. But if Spigelman CJ had not felt the need to expand his remarks so as to rebut Beazley J’s dissent,89 it is doubtful that the religious confession privilege discussion would have arisen. Though all of this obiter opinion from a court which Spigelman CJ characterised as an intermediate court of appeal90 is persuasive, it is not the last Australian judicial word relevant to the subject of common law privileges, including arguably religious confession privilege. That last word comes inductively from the High Court’s reasoning in Daniel’s Corporation v ACCC.91 As that judgement is now reviewed, it is useful to keep in mind the joint insight of Abadee and Barr JJ in R v Young, who found the most compelling reason not to allow a liberal interpretation of the sexual assault communications privilege statute in that case, was because such interpretation would extinguish the established defence right of an accused person to test all the evidence presented against him/her. Daniels Corporation v ACCC In Daniels, the Australian Competition and Consumer Commission had denied that Daniels Corporation could rely on the legal professional privilege claimed in respect of documents the Commission required to be produced. The Full Federal Court agreed with the Commission, but the High Court unanimously reversed the Federal Court finding that legal professional privilege was not just a rule of evidence,92 nor even simply a rule of substantive law.93 It was an important94 and fundamental common law immunity95 which embodies a substantive legal and human right96 that “is not limited to judicial or quasi-judicial proceedings”.97 All of the judges traced these ideas with 87

Idem. Ibid, p. 749, para 352. Spigelman CJ also anticipated further parliamentary legislative involvement if it did not approve of the Court of Appeal’s decision (ibid, p. 696, para 70, and p 702, para 105). 89 Ibid, p. 695, para 68, where he said he had added to his initial written decision after reading “the judgement of Beazley JA”. 90 Ibid, p. 698, para 84, and p. 700, para 91. 91 Daniels Corporation v ACCC (2002) 192 ALR 561; [2002] HCA 49; (2003) 77 ALJR 40. 92 Daniels Corporation v ACCC (2002) 192 ALR 561, 564 (para 10 per Gleeson CJ, Gaudron, Gummow and Hayne JJ) and 583 (para 85 per Kirby J). 93 Ibid, pp. 564–565, para 11, per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 94 Idem. 95 Ibid, pp. 573–574, para 44, per McHugh J; p. 583, para 85, per Kirby J. 96 Ibid, pp. 583–584, para 86, per Kirby J. 97 Ibid, p. 583, para 85, per Kirby J. 88

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approval back to earlier High Court of Australia decisions in Baker v Campbell98 in 1983 and Attorney-General (NT) v Maurice99 in 1986. Nor did the fact that Daniels was a corporate person rather than a human being eliminate its right to legal professional privilege. Though the concurring judgements of Gleeson CJ, Gaudron, Gummow and Hayne JJ seemed to “assume without deciding”100 that Daniels Corporation was entitled to the benefit of legal professional privilege, for Kirby J this “fundamental civil right belong[ed] … also to artificial persons such as corporations”.101 Nor did the ACCC’s argument that section 155 of the Trade Practices Act 1974 (Cth) was otiose if it did not abrogate legal professional privilege, make any headway with the court. For McHugh J, the fact that only a small percentage of documents claimed under the section would be protected by the privilege102 meant that section 155 still had meaning and practical effect if legal professional privilege were held unaffected by its operation. How much of the High Court’s defence of legal professional privilege as a fundamental common law and human right could Australians expect to see logically transferred to similarly defend either religious confession privilege or confidential religious communications privilege? Indeed, could either of these alleged privileges be correctly characterised as either a common law or a human right? The language used in the joint judgement of Gleeson CJ, Gaudron, Gummow and Hayne JJ when stating their version of the historical and foundational status of legal professional privilege is a good starting point for analysis. They wrote: It is now settled that legal professional privilege is a rule of substantive law … Being a rule of substantive law and not merely a rule of evidence, legal professional privilege is not confined to the processes of discovery and inspection and the giving of evidence in judicial proceedings … [it enables] resist[ance to] the giving of information or the production of documents in accordance with [other] investigatory procedures.103

Is it similarly true to say either that ‘it is well settled that religious confession privilege is a rule of substantive law’? Is it more than a ‘mere rule of evidence’ if it is even accepted to be that? Such is doubtful. If it were true that ‘it is well settled’ that religious confession privilege is a ‘substantive rule of law’ or a well recognised ‘rule of evidence’, this book would not have been written. Since it is not well settled that religious confession privilege is even a rule of evidence, is it likely that the High Court of Australia will invoke this same reasoning in its

98 99 100 101 102 103

Baker v Campbell (1983) 153 CLR 52. Attorney-General (NT) v Maurice (1986) 161 CLR 475. Daniels Corporation v ACCC (2002) 192 ALR 561, 566, para 14. Ibid, pp. 582–588, para 103. Ibid, p. 574, para 45. Ibid, pp. 564–565, paras 9–10.

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defence when a religious confession privilege does eventually come before it? Will this book’s analysis or the arguable fact that religious confession privilege is believed to exist by the general populace104 make any difference? While the answer to this last question is sociologically beyond the scope of this book, the High Court’s use of the phrase ‘well settled’ raises precedential issues which are appropriately discussed here. If by ‘well settled’, the High Court means that there have been enough cases affirming legal professional privilege to place its existence beyond doubt, then religious confession privilege does not meet the standard.105 If the test is or can

104 Though not clearly representative of the views of the ‘general populace’, in the Legislative Council of NSW, the Hon Franca Arena found it “strange that … legislation should be necessary” to protect the immunity of religious confessions in a court of law (Parliamentary Debates, Legislative Council, 21 November 1989, p. 12806). The Hon BH Vaughan said later the same day that he “was particularly attracted to the statement made by the Hon Franca Arena when she said it came as a great surprise to her that it ought even be necessary to legislate for the protection of a clergyman in the circumstances I have set out” (ibid, p. 12830) and the Hon FJ Nile “question[ed] the necessity to introduce the legislation into the House” (idem) but nonetheless supported it. The recent (September 2003) introduction of the Children’s Protection (Mandatory Reporting) Bill into the South Australian Parliament proposing to reduce the religious confession privilege in child abuse cases, manifests some understanding in that state that the privilege exists at common law, even though it has never been confirmed there by statute. 105 The following is a simple summary of the obiter (no ratio available) for and against religious confession privilege: Against: (i)Anonymous (1693) Skinner 404; 90 ER 179 per Holt LCJ; (ii) R v Sparkes (c 1790) per Buller J, unreported but referred to in Du Barré v Livette (1791) 1 Peake 108; 170 ER 96; (iii) R v Gilham (1828) 1 Moody Cr Cas 186; 168 ER 1235 per Park J; (iv) Greenlaw v King (1838) 1 Beav 137; 48 ER 891 per Langdale LJ; (v) Russell v Jackson (1851) 9 Hare 387; 68 ER 900 per Turner VC; (vi) Anderson v Bank of British Columbia (1876) 2 Ch D 644 per Jessel MR and James LJ; (vii) Wheeler v LeMarchant (1881) 17 Ch D 675 per Jessel MR. Though (viii) Normanshaw v Normanshaw (1893) 69 LTR 468 (per Jeune P); (ix) McTaggart v McTaggart [1949] Probate 94 (per Denning LJ, as he then was); (x) Attorney-General v Mulholland and Foster [1963] 2 QB 477 (per Denning, LJ, as he then was); and (xi) D v NSPCC [1978] AC 171 (per Edmund-Davies LJ et al) have likewise been cited against the privilege (Nokes also says that McTaggart v McTaggart is a case that “suggest[s] or assert[s] that no privilege exists (Nokes, GD, “Professional Privilege” (1950) 66 LQR 88, 98), McWilliams reads Attorney-General v Mulholland and Foster against the privilege though he finds the “budding of a discretion” in D v NSPCC (McWilliams, PK, Canadian Criminal Evidence, 3rd ed, Ontario, Canada Law Book Limited, 1984, pp. 920–922). These four cases were discussed in chapter five as obiter authority in favour of a broader though discretionary religious communications privilege. One additional case against religious confession privilege is: (xii) Butler v Moore (1804–1806) 2 Sch & Lef 249. This case before the Irish Master of the Rolls, Sir Michael Smith, which raised the admissibility of a priest’s evidence as to the testator’s Catholicism (which would have invalidated his will) was discussed in chapter six (pp 238,240). Its precedential value has been dismissed by WM Best, (A Treatise on the Principles of Evidence, London, S Sweet, 1849, pp. 459–460) and Clinton (Mayor Clinton was the judge in The People v Phillips (1813) NY Ct Gen Sess, reprinted in “Privileged Communications to Clergymen” (1955) 1 The Catholic Lawyer 198) on account of its anti-Catholic bias. For: (i) Garnet’s case (1606) 2 Howells State Trials 217 per Salisbury, Northampton and perhaps Sir Edward Coke, as he then was; (ii) Du Barré v Livette (1791) 1 Peake 108; 170 ER 96 per Kenyon LCJ; (iii) R v Radford (1823) unreported (cited in R v Gilham (1828) 1 Moody Cr Cas 186; 168 ER 1235), per Best CJ (later Wynford LJ); (iv) Broad v Pitt (1828) 3 Carr & p. 518; 172 ER 528 per Best CJ (later Wynford LJ); (v) Attorney-General v Briant (1846) 15 LJ Exch 265;

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be that suggested by Spigelman CJ in R v Young106 – that religious confession privilege is “sufficiently definite, widely accepted and permanent”107 so that it is a recognised existing privilege “as distinct from … a new category of privilege”,108 then perhaps it can expect more sanguine treatment if it is ever considered in the High Court of Australia. But even if it is conceded with the Supreme Court of Canada, that the evidence of the existence of a confidential religious communications privilege at common law is inconclusive,109 there is certainly room in Kirby J’s language in Daniels to argue that religious confession privilege is a fundamental common law human right.110 For there are at least as many constitutional and international human rights instruments available as interpretive helps for Australian courts to protect the right to freedom of religious practice as there were human rights instruments protecting the right to confidential legal representation at criminal trial and which he referenced in Daniels.111 The fact that Australia also has a direct constitutional guarantee of freedom of religious practice112 may provide greater protection for religious confession

(1846) Revised Reports 71; 153 ER 808 per Alderson B; (vi) R v Griffin (1853) 6 Cox Cr Cas 219 per Alderson B; (vii) R v Castro (1874) 2 Charge of the Chief Justice 648 per Cockburn LCJ; (viii) Ruthven v De Bour (1901) 45 Sol J 272 per Ridley J; (ix) Tannian v Synnott (1903) 37 Ir. L. T. 275 per Chief Baron Palles of Ireland. Several other cases that might be added to this “ayes” list are: (x) In re Keller (1887) 22 LR Ir 158; (xi) Cook v Carroll [1945] Ir Rep 515 (per Gavan Duffy J); (xii) R v Lynch [1954] Tas SR 47 (per Crisp J); (xiii) R v Howse [1983] NZLR 246 (per Cooke P, later Lord Cooke of Thorndon). In re Keller might be omitted since all nine judges involved studiously avoided direct reference to religious confession privilege, though the Irish Court of Appeal granted the requested writ of habeas corpus which saw the Reverend Keller released from incarceration for contempt. Cook v Carroll might be omitted, since it strictly dealt with religious communications privilege rather than religious confession privilege, though it does contain some fiery condemnation of the English Judges who opined against religious confession privilege on grounds of pure religious prejudice. And Lynch and Howse are strictly not relevant to consideration of a common law privilege because they were decided on interpretation of applicable statutory provisions, though Lynch in particular does contain dicta accepting the existence of religious confession privilege in common law (mentioned briefly supra p. 181). An additional case in favour of religious confession privilege is (xiii) The People v Phillips (1813) NY Ct Gen Sess. (Reprinted in “Privileged Communications to Clergymen”, The Catholic Lawyer 1 (1955) 198). The People v Phillips might be omitted despite its careful treatment of the English authorities because it was essentially decided on United States constitutional grounds. It was considered in detail in chapter six because of Judge Clinton’s insights into the issue of anti-Catholic prejudice which he considered the only reason there was any English authority against religious confession privilege. (xiv) R v Gruenke (1991) 3 SCR 263. This case might similarly be excluded from a strict analysis of English common law authority because, even though it represents a 9-0 affirmation of religious confession privilege in some form from the highest Canadian court, the 1982 Canadian Charter of Rights and Freedoms had a significant influence on that result. 106 R v Young (1999) 46 NSWLR 681. 107 Ibid, p. 701, para 102. 108 Idem. 109 R v Gruenke [1991] 3 SCR 263, pp. 287–288 per Lamer CJ. 110 Ibid, p. 701, para 102. 111 R v Gruenke [1991] 3 SCR 263, pp. 287–288, per Lamer CJ. 112 The Australian Constitution 1901, section 116.

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privilege than is even provided by the Canadian Charter of Rights and Freedoms.113 In Canada, that Charter so bulwarked freedom or religious practice that it removed any need for the Supreme Court of Canada in R v Gruenke114 to consider whether religious confession privilege was either an important common law right or a fundamental human right. The protection is stronger in Australia not because the guarantee of free religious practice has been a part of the constitutional architecture since federation, but because the commonwealth religious confession privilege statute115 cannot be repealed without an argument that such repeal is constitutionally prohibited as having no purpose other than the proscription of a religious practice.116 That religious confession is practiced only in some Christian churches does not undermine this defensive argument, because section 116 of the Australian Constitution and the First Amendment to the United States Constitution upon which it was modeled, both intended to protect diverse rather than egalitarian religious practice. Indeed, though Kirby J’s idea that legal professional privilege is a fundamental human right117 (presumably because an accused person’s right to a fair trial is considerably impeded if consultations with counsel are not beyond the scope of adversarial review118) resonates with international human rights instruments, it cannot claim the express constitutional guarantee available to religious practices. In any event, it is equally compelling to observe that compulsion to disclose religious confessions, is as germane to that freedom of conscience and belief protected by international human rights instruments as legal professional privilege is to the right to a fair trial in similar instruments. International Human Rights in the High Court of Australia Because the High Court of Australia has referred to international human rights instruments to protect legal professional privilege against statutes that seemed to abrogate it, the likely Australian judicial response to a formal claim of religious confession privilege at common law cannot be completely answered without further consideration of how the High Court currently treats international human rights instruments in its jurisprudence. This consideration will not resolve the much larger questions of whether international treaties or

113

For details of the Canadian Charter of Rights and Freedoms, see chapter five note 128. R v Gruenke (1991) 3 SCR 263. 115 Commonwealth Evidence Act 1995, section 127. 116 See chapter six, pp. 167–168. 117 Daniels Corporation v ACCC [2002] 192 ALR 561, p. 583, para 85. See also per McHugh J, pp. 573–574, para 44. 118 Note however, the discussion infra (pp. 199–204) where it is noted that this rationale for legal professional privilege and those traditionally advanced in favour or self-incrimination privilege and religious confession privilege have never been the subject of convincing objective empirical proof and are probably not susceptible to such proof. 114

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customary international law have direct application in Australian domestic law; how the competing federal and state interests in the subject matter of international treaties is appropriately balanced under the Australian constitution; or how Australian constitutional law might be appropriately reformed to clarify the role of the Executive in treaty ratification though recognising the sovereignty of state and federal parliaments. But I will highlight the High Court of Australia’s willingness to use “international norms … as an interpretive aid … to help resolve statutory ambiguity or to fill lacuna in the common law”.119 While it is less likely that a lower level court, or even what Spigelman CJ characterised as an intermediate Court of Appeal in Australia120 would give these lofty notions much time,121 the High Court has confirmed that international treaty obligations have some impact on Australian domestic law.122 Though there has been some retreat from the influence accorded to international human rights instruments in Minister for Immigration and Ethnic Affairs v Teoh,123 the references of both McHugh and Kirby JJ in Daniels to legal professional privilege not only as a common law right, but also as a “fundamental human right”,124 confirm that international human rights instruments will continue to have influence in future consideration of evidential privileges and immunities.125 119 Donaghue, S, “Balancing Sovereignty and International Law: The Domestic Impact of International Law in Australia”, (1995) 17 Adelaide Law Review 213, 244. Note that the Donaghue article discusses all these larger questions in the wake of the decision of the High Court in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, though it does not discuss how the High Court has apparently retreated since 1995. See also notes 123 and 125. 120 R v Young (1999) 46 NSWLR 681, 698 and 700 (paras 84 and 91 respectively). 121 Note also Donaghue’s 1995 discussion of the likely future direction of the High Court in light of the record of the various Justices in the then past. While Kirby J is recorded as having “declined to lend [his … support to the wide role for international law advocated by Einfeld J in Minister for Foreign Affairs & Trade v Magno (1992) 112 ALR 529, 535, Donaghue notes that Kirby J was a “vocal advocate of the importance of international law” while he served in the New South Wales Court of Appeal (Donaghue, op cit, p. 253). 122 Evatt, E, “The Impact of International Human Rights on Domestic Law” in Litigating Rights, Huscroft, G, and Rishworth, P, editors, Oxford-Portland Oregon, Hart Publishing, 2002, pp. 281, 293. However, note that Sir Anthony Mason has doubted the strength of this assertion in the context of the High Court’s decision in Re Minister for Immigration & Multicultural Affairs, ex parte Lam (2003) 195 ALR 502 (Mason, Sir A, “The tension between legislative supremacy and judicial review” (2003) 77 ALJ 803, 808–809). 123 Minister for Immigration and Ethnic Affairs v Teoh(1995) 183 CLR 273. In connection with the retreat from Teoh, note two articles by Wendy Lacey (“In the wake of Teoh: Finding an appropriate Government Response”, [2001] Federal Law Review 9, and “A prelude to the demise of Teoh: The High Court decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam”, [2004] Sydney Law Review 7). 124 Daniels Corporation v ACCC [2002] 192 ALR 561, 573–574 (para 44, per McHugh J) and 583–584 (paras 85 and 86, per Kirby J). 125 See for example, John Trone (“Constitutions, International Treaties and Contracts”, in The Convergence of Legal Systems in the 21st Century, Moens GA and Biffot R, eds, CopyRight Publishing Company Pty Ltd, Brisbane, pp. 47, 50–51) and Stephen Donaghue, op cit, pp. 244–250).

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Elizabeth Evatt, a member of the United Nations Human Rights Committee from 1993 to 2000126, has written that “Justices of the High Court of Australia have recognised the importance of developing the law consistent with international human rights principles where possible”.127 But she has expressed concern that the protection of United Nations “[c]ovenant rights and freedoms … on a de facto basis … leaves them vulnerable to restriction and erosion by legislation [in the absence of entrenched protection]”.128 She has observed High Court of Australia use of international jurisprudence in Mabo129 “to recognise native title”;130 in Australian Capital Television131 to find “an implied protection of freedom of communication in regard to public affairs and political discussion”;132 and in Teoh,133 to confirm that Australian “ratification of the Convention on the Rights of the Child gave rise to a legitimate expectation that decision makers would exercise their discretion in matters affecting children in conformity with the terms of the Convention”.134 Such international influence may increase the possibility that confidential religious communications privilege would receive a favourable hearing in the High Court of Australia, particularly since the United States135 and Canada136 have already recognised it in their common law jurisprudence and it is arguably implicit in the original United Nations Declaration of Human Rights in 1948.137 However, though the Federal Government eventually dropped its legislative efforts to “override” Teoh,138 McHugh J’s dissent in that case denying that Australia’s ratification of the Convention on the Rights of the Child obliged domestic decision makers to act in strict conformity with

126 She has previously served five years on the English Law Commission at the invitation of Lord Scarman; as Chief Judge of the Family Court of Australia from its inception in 1975, and as President of the Australian Law Reform Commission (http://www.newcastle.edu.au/services/ library/collections/archives/int/evatt.html site and visited 6 December 2003). 127 Evatt, E, op cit, p. 293. 128 Ibid, p. 290. 129 Mabo v Queensland (No 2) (1992) 175 CLR 1. 130 Evatt, E, op cit, p. 293. 131 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106. 132 Evatt, E, op cit, p. 293. 133 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. 134 Evatt, E, op cit, p. 293. 135 Mullen v US (1959) 263 F. 2d 275. 136 R v Gruenke [1991] 3 SCR 263. 137 Article 18 states: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.” 138 Wendy Lacey noted in 2001 that there were a variety of efforts to “override the decision” in Teoh including “three Commonwealth Bills, one State Act [as well as] several ‘executive statements’ at both Federal and state level” (“In the wake of Teoh: Finding an appropriate Government Response”, [2001] Federal Law Review 9). Elizabeth Evatt also noted that the majority view in Teoh was not shared by the Executive (op cit, p. 293).

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that convention, has proven more indicative of development of the law in Australia than the majority view.139 However, in this book’s context of privileges and immunities, it remains the fact that the High Court in Daniels not only drew strength from international human rights norms as it reinforced the status of legal professional privilege, but the court declined to insist on the traditional distinction between privileges and immunities which Beazley JA had made in R v Young.140 As in the House of Lords in D v NSPCC,141 there is in the High Court’s language in Daniels, an elision of these concepts. For in their majority judgement, Gleeson CJ, Gaudron, Gummow and Hayne JJ said that “legal professional privilege is not merely a rule of substantive law. It is an important common law right or, perhaps more accurately, an important common law immunity.”142 Since legal professional privilege may be waived, which fact is recognised statutorily in New South Wales,143 and in Daniels is characterised as an immunity,144 the old distinction between privileges and immunities is arguably signalled as a distinction of history with declining contemporary significance. I will now review the historical distinction between immunities (protecting Crown self-interest) and privileges (exceptions to witness compellability to limit the risk of tyranny) to determine whether logic familiar in one category can now be reasonably inducted into the other. Privilege and Immunity Stone and Wells list six “groups of rules”145 in the law of evidence (all of which they name ‘privileges’) which as “considerations … extraneous to rational inquiry … sacrifice truth simpliciter on the ground that otherwise some important social or public interest would be injured”146 (italics original). Their

139

Note in particular that the majority in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 declined to apply the legitimate expectations doctrine articulated in Teoh, finding simply that Lam had not been prejudiced by any procedural unfairness in the decision to deport him, even though letters provided by the carers of his two children were not considered by the Immigration authorities. See also Sir Anthony Mason’s view that this decision in Lam reduced the likelihood that future High Court decisions would override administrative decisions solely because of international treaty obligations (“The tension between legislative supremacy and judicial review” (2003) 77 ALJ 803, 808–809). 140 R v Young (1999) 46 NSWLR 681, 704, para 126 where she noted that an immunity could not be waived like a privilege. 141 D v NSPCC [1978] AC 171. See also discussion supra in chapter five, pp. 132–141. 142 Daniels Corporation v ACCC [2002] 192 ALR 561, 565, para 11, per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 143 Evidence Act 1995, sections 122–126. 144 Daniels Corporation v ACCC [2002] 192 ALR 561, 573–574, para 44, per McHugh J; p. 583, para 85, per Kirby J. 145 Stone J, Evidence, Its History and Policies, Revised by WAN Wells, Sydney, Butterworths, 1991, p. 69. 146 Idem.

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list includes “rules protecting political institutions … rules protecting judicial institutions [including legal professional privilege and] … rules protecting individual liberty and security”147 including self-incrimination privilege. All of these “must be protected, if necessary, by casting truth to the dogs”.148 Since they describe even ‘rules protecting political institutions’ as privileges, even the Stone and Wells categories imply that the distinction between privilege and immunity has diminishing significance and that the logic is becoming transferable. The rules protecting individual liberty and security manifest “the general tendency of English law to prevent vexation and oppression of individual liberty disproportionate to the end to be achieved … [and] is so pervasive that it tends to cover and obscure many rules primarily based on other considerations”.149 Self-incrimination privilege in particular is justified by two arguments, the first of which Stone and Wells say is the more compelling: First … without such a privilege, the universal obligation to testify would be a veritable terror to most in the community, for few are without sin. Terror would produce evasion and prevarication and hence more truth would, in the long run, be lost without it than because of it. Secondly … though the guilty need no protection, the innocent do, and to compel self-incrimination would encourage overzealous officials and blackmailing neighbours.150

Stone and Wells’ observation of the tendency in English law to protect individual liberty absent a compelling interest to do otherwise151 is the same argument which has often been used to support religious confession privilege.152 For the recalcitrance of the clergy despite compulsive efforts, is said to be likely to bring the legal system into disrepute.153 Save for these subjective arguments vested in freedom of conscience, neither self- incrimination privilege nor religious confession privilege have been the subject of objective justification and it is doubtful that a convincing empirical test to prove the need for either could be constructed.154 However, if it is acceptable to justify self-incrimination 147

Ibid, pp. 70–73. Ibid, p. 70. 149 Ibid, p. 73. 150 Ibid, p. 562. 151 Ibid, p. 73. 152 For example, Bentham observed that the compulsion of confessional evidence would result in such “casual, and even rare” “assistance to justice” that it is outweighed by the infamy attaching to the system that compelled “the violation of so important a professional as well as religious duty”. He also considered that the public interest in facilitating the repentance enabled by this Catholic practice and his expectation that priests would find ways to avert prospective mischief without breaching confidence in the absence of repentance, more than justified state recognition of confessional privilege (Rationale of Judicial Evidence, New York and London, Garland Publishing Inc.,1978 (Reprint of the 1827 ed published by Hunt and Clarke, London), Vol 4, pp. 589–591). 153 For example, McNicol SB, Law of Privilege, Australia, The Law Book Co, 1992, p. 330. 154 Doubtful because generalised statistical analysis of decisions in cases made where the privilege was ignored (if either privilege were ever completely abrogated) could not prove that 148

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privilege, now also deemed a common law right,155 with only statements about the need to protect freedom of conscience, then such logic should also suffice to justify religious confession privilege. Stone and Wells’ justification for the privilege protecting communications between solicitor and client – “that if it did not exist no man would feel safe in obtaining legal advice, and hence the whole system of administration of justice would tend to break down”156 – summarises all that has been written about that privilege. However, this negative justification is not completely convincing even when those writers cite Best’s observation, “that after the first harvest of secrets immediately following the abolition of the privilege, there would be no more, for men would not confide in their legal advisors”.157 For no one has satisfactorily shown that the judicial system would grind to a halt without legal professional privilege as we have come to know it. Indeed, Stone and Wells seem to sense this when they endeavour to shore up the argument with the statement that without legal professional privilege, “[l]egal advice would become valueless”158 and cross-examination the “most powerful weapon for ascertaining truth”159 “would be deprived of … [its] efficiency”.160 But they do not explain161 except to say that Lord Brougham162 dismissed the contemporary utilitarian criticism163 that the real reason for the existence of legal professional privilege can be found in the “particular importance which the law

a particularised decision in a case where either privilege was recognised was objectively aberrant. The only convincing empirical proof of the value of either privilege, would involve running an identical case twice before the same judicial forum to measure and analyse the results. Note, however, that attorney preparation for significant North American jury trials often includes the presentation of evidence and argument to simulated juries to determine strategy including the advisability of settlement. 155 See notes 38–41 supra and supporting text. 156 Stone and Wells, op cit, p. 71. 157 Ibid, p. 572. Note once again that this argument is simply a restatement of one of Bentham’s arguments in favour of religious confession privilege when he said that religious confessions “would be kept back, under the apprehension [that they would be] … use[d] for a judicial purpose” (op cit, p. 587). 158 Idem. 159 Idem. 160 Idem. 161 Stone and Wells, op cit, p. 573. 162 Greenough v Gaskell (1833) 1 Myl & K 98, 103; 39 ER 618, 621. 163 Lord Brougham was apparently here referring to Bentham and his utilitarian disciples. Wigmore (Evidence in Trials at Common Law, Revised by John T McNaughton, Boston, Little Brown, 1961, Vol 8, pp. 541–554) considered and dismissed Bentham’s strong criticisms of legal professional privilege (citing Rationale of Judicial Evidence (1827), 7 The Works of Jeremy Bentham 473, 474, 475, 477, 479 (Bowring ed. 1842) ). Bentham and his disciples questioned rhetorically why the justice system would be so irrevocably damaged by subjecting attorney client communications to judicial scrutiny and suggests United States style ‘miranda’ warnings (as they are now called) by attorneys would simply limit the nature and content of such discussion, a result not without precedent. The most emphatic Benthamite point apparently being that only those truly guilty of crime could have any protest against the removal of the privilege which would then make professional lawyers true ministers of justice instead of abettors of crime.

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attributes to the business of legal professors”.164 Such circular justification for legal professional privilege does not provide much analogical help for a theorist looking for logic with which to defend religious confession privilege. That Bentham criticised legal professional privilege as an unnecessary fetter on the search for truth,165 but believed it was unjust to compel disclosure of religious confessions, may manifest no more than the workings of his social conscience. For religious confession privilege would benefit persecuted Catholics whereas legal profession privilege only benefited the wealthy who could afford to engage lawyers in both civil and criminal matters. But his logic-affirming religious confession privilege vests in practicality and tolerance.166 However, other rationales have been advanced to defend legal professional privilege, significantly by McHugh J in Carter v Northmore Hale Davy & Leake.167 There he accepted that the traditional rationale advanced to defend legal professional privilege – “that the doctrine is necessary for the ‘proper functioning of the legal system’ ”168 – “hardly seems applicable”169 when the “legal advice”170 limb of the privilege is considered separately from

Though Wigmore suggests Bentham’s arguments are only superficially convincing, Wigmore’s mostly civil law examples to rebut the attack are not themselves convincing since it is in the criminal arena where the constitutional issues (the essential subject of the Benthamite criticisms) loom largest. Indeed, Wigmore’s defence of legal professional privilege only begins to become convincing when he observes that legal professional privilege can only be deemed an evil “to the extent that the bar is unprincipled” (ibid, p. 553) and if that sort of “treachery” (idem) which he finds implicit in Benthamite criticisms were well founded, “more radical remedies are needed than denial of the privilege”(idem). In light of his strong criticism of privileges generally, it is surprising to find Bentham a strong advocate of religious confession privilege, though his treatment of the subject as a purely Catholic issue, demonstrates his passion for the removal of systemic injustice in the eighteenth and nineteenth century English legal system in which he lived (Rationale of Judicial Evidence, New York and London, Garland Publishing Inc., 1978 (Reprint of the 1827 ed published by Hunt and Clarke, London), Vol 4, pp. 586–592). 164 Greenough v Gaskell (1833) 1 Myl & K 98, 103; 39 ER 618, 621. Lord Brougham also said that the real reason for legal professional privilege “is out of regard to the interests of justice, which cannot be upholden … without the aid of men skilled in jurisprudence … If the privilege did not exist at all, every one would be thrown upon his own legal resources; deprived of all professional assistance, a man would not venture to consult any skilful person, or would only dare to tell his counselor half his case”. 165 Wigmore called Bentham the greatest critic of all privileges (Evidence in Trials at Common Law, Revised by John T McNaughton, Boston, Little Brown, 1961, Vol 8, p. 877). See also note 163. 166 In essence, Bentham’s practical argument why “catholic confession” should be privileged, is that compelling disclosure will not result in any more evidence being made available to a court since either confessions will not be made, or the priest will accept punishment for contempt rather than disclose. His tolerance argument is that it is “altogether inconsistent and incompatible” with the notion that “the catholic religion [is supposed] … to be tolerated” to coerce the disclosure of religious confessions (Bentham J, Rationale of Judicial Evidence, Garland Publishing Inc, New York & London, 1978, Vol IV, pp. 586–592). See also note 163. 167 Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121. 168 Ibid, p. 161. 169 Idem. 170 Idem.

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its “contemplated litigation”171 limb172. For McHugh J, since the High Court had held that “legal professional privilege is not a rule of evidence but a substantive rule of law”,173 the “best explanation”174 of ‘legal advice privilege’ “is that it is a ‘practical guarantee of fundamental, constitutional or human rights’ ”.175 He elaborated: By protecting the confidentiality of communications between lawyer and client, the doctrine protects the rights and privacy of persons including corporations by ensuring unreserved freedom of communication with professional lawyers who can advise them of their rights under the law and, where necessary, take action on their behalf to defend or enforce those rights. The doctrine is a natural, if not necessary, corollary of the rule of law and a potent force to ensuring that the equal protection of the law is a reality. This Court has accepted that, although the doctrine is based on the requirements of the public interest, its application in particular cases does not depend upon balancing it against other rights that are grounded in the public interest. Not even the public interest in courts having all the relevant evidence before them has been considered sufficient to override the public interest in maintaining the unqualified operation of the privilege. As Deane J pointed out in AttorneyGeneral (N.T.) v Maurice:176 “Its efficacy as a bulwark against tyranny and oppression depends upon the confidence of the community that it will in fact be enforced. That being so, it is not to be sacrificed even to promote the search for justice or truth in an individual case or matter and extends to protect the citizen from compulsory disclosure of protected communications or materials to any court or to any tribunal or person with authority to require the giving of information or the production of documents or other materials.”177

In defending legal professional ‘privilege’, McHugh J not only used the ‘public interest’ tool used to defend traditional ‘immunities’, he engaged the rhetoric of constitutional law to protect legal professional privilege as if it were the subject of a guarantee in an Australian Bill of Rights. A consideration of the objective utility of this defence of legal professional privilege in the civil sphere is well beyond the scope of this book. But it is significant in the context of this consideration of religious confession privilege to observe that even McHugh J’s defence of legal professional privilege in Carter is founded in constitutional logic which only seems relevant where the State is pitted against the citizen. With respect, that logic lacks compelling force when the State is a bystander and the dispute is a civil one between citizens who do not want to disclose 171

Idem. Mason J similarly doubted that legal professional privilege should extend to the provision of legal advice (Baker v Campbell (1983) 153 CLR 52, 75). See also pp. 185–186 supra. 173 Idem. 174 Idem. 175 Idem, quoting A.M. and S. Europe Ltd v Commission of the European Communities (1983) QB 878, 941. 176 Attorney-General (N.T.) v Maurice (1986) 161 CLR 490. 177 Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121, 161. 172

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their communications with their respective lawyers.178 But when the dispute is between a citizen and the State as in Young and Daniels and in religious confession privilege cases, such constitutionally premised defences certainly have convincing power. Stone and Wells expect the distinction between immunity and privilege to endure when they write that the “privilege for state documents and communications”179 is more than a “mere privilege … [since] once it comes into play, it not only forbids … proof of [the contents of a document or communication through] a particular channel, but also by any other channel”.180 However, they believe that the courts have the same power and interlocutory tools to examine and inspect in cases where State secrets are an issue, despite the fact that the State’s interest has been characterised in commentary as an immunity interest rather than as a privilege – and they believe that the courts should make “freer use”181 of this power. Indeed, Stone and Wells find that judicial self-denial of its right to inspect in cases where the head of the government department concerned personally asserts the claim of immunity/privilege,182 is the only difference between government claims of immunity on grounds of the public interest, and other cases where different public interest factors are argued in favour of a privilege. Again however, State assertions of immunity will only be trumped if it is perceived that some constitutional right of a citizen will be trampled if such State immunity claim is upheld. Though there remains an argument that immunities and privileges remain different since privileges can be waived and State immunities cannot (which Beazley JA identified as a significant difference between the two types of rules of evidence in her Young dissent183), if a government privilege has been waived following the leak of otherwise privileged material into the public domain, it is difficult to see even a government claim of privilege withstanding judicial scrutiny. Similarly, the doctrine that government public interest immunity is absolute in the sense that it does not need to be asserted to be found extant by a judge and that it bars secondary routes to the evidence, can be discounted in practice if judges retain a right of inspection as Stone and Wells assert.184 This insight itself recalls Best CJ’s statement in Broad v Pitt185 in 1828 that religious 178 Though when exercising its powers to compel evidence, the court may certainly be seen as an agency of the state, the state is not ordinarily a party in civil disputes. 179 Stone and Wells, op cit, p. 591. 180 Idem. 181 Ibid, p. 592. 182 Stone and Wells, op cit, p. 594. 183 R v Young (1999) 46 NSWLR 681, 704 para 126 citing McNicol SB, Law of Privilege, chapter one. The other distinctions Beazley JA notes between immunities and privilege are that immunities do not rely upon the assertion of a claim by the parties and that “secondary evidence cannot be given of evidence the subject of the claim”. 184 Stone and Wells, op cit, pp. 591–597. 185 Broad v Pitt (1828) 3 Carr & p. 518; 172 ER 528. Discussed in chapter four, pp. 102–103 and mentioned in chapter five, p. 125.

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confession privilege could be waived. Previous to the decision in R v Gilham186 disapproving his earlier decision in R v Radford187 in 1823, Best CJ had similarly considered that religious confession privilege was absolute. Privilege/Immunity in a Criminal Setting Because religious confession and religious communications privilege issues are most likely to arise in the context of criminal cases, and because the privileges considered in both Young and Daniels were similarly considered in a criminal law context, the reasoning is more susceptible to persuasive inductive transfer than if the context were civil. In both Young and Daniels, the onus of proving the case against the appellants (as prospective defendants in further litigation after the subject pre-trial matters were resolved) beyond reasonable doubt would have been significantly interfered with if the privilege/immunity question were decided against them. For Abadee and Barr JJ in R v Young, this proposed interference with an accused person’s fundamental common law rights in a criminal trial was the primary reason why the statutory sexual assault communications privilege under consideration in that case should not be interpreted generously.188 Interference with confidential religious communications privilege has the same practical result. For arguably the adduction of evidence that an accused person expected to be kept confidential also deprives that person of a fair trial and represents a form of self incrimination without caution. But to understand the validity of this comparison between the rights of Mr Young to have access to all the evidence (despite the existence of a statutory sexual assault communications privilege barring the adduction of a sexual assault counsellor’s evidence at trial) and an accused person’s claim of a common law religious communications privilege in a criminal trial, it is necessary to compare the historical development of both self incrimination and legal professional privilege. J Noel Lyon’s 1965 observation that allowing compelled disclosure of discussions between lawyer and client and between priest and penitent “would be tantamount to compelling the client to give evidence against himself ”189 is a good starting point, although its merger of the two privileges is superficially unhelpful to modern readers who see the privileges as quite distinct. Neither 186 R v Gilham (1828) 1 Moody Cr Cas 186; 168 ER 1235. Discussed in chapter one, pp. 18–20 and in chapter four, pp. 102–103. 187 Unreported but referred to in R v Gilham (1828) 1 Moody Cr Cas 186; 168 ER 1235. 188 R v Young (1999) 46 NSWLR 681, 721–723. Lord Simon had also confirmed this principle in D v NSPCC [1978] AC 171, 232, when he said that “[T]he public interest that no innocent man should be convicted of crime is so powerful that it outweighs the general public interest that sources of police information should not be divulged.” 189 Lyon, JN, “Privileged Communications – Penitent and Priest” [1964–1965] 7 Crim LQ 327, 328.

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privilege arose in a vacuum, but both were justified by similar strands of reasoning. Stone and Wells considered that the most powerful historical reason which justified the self incrimination privilege, was the “evasion and prevarication”190 that terror of the universal obligation to testify would produce and which would ultimately result in the loss of more truth than it would see adduced.191 Wigmore has explained that while legal professional privilege originated in “the oath and honor of the attorney”,192 a professional obligation which the court understood though it did not hold itself competent to “judge its standards”,193 it was superseded in the late eighteenth century by a new justification that “looked to the necessity of providing subjectively for the client’s freedom of apprehension in consulting his legal advisor”.194 The logic is the same. What may be even more significant in the 1743 Exchequer case195 that Wigmore cites to demonstrate the new logic, are references to the relationship between attorney and client as a “sacred”196 thing, invoking an “inviolable secrecy”197 – terms clearly calculated to bring to mind the secrecy surrounding confessions made to priests and the language of canonical practice. Baron Alderson was even more explicit in R v Griffin198 in 1853 when he reversed the

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Stone and Wells, op cit, p. 562. See more detailed discussion of the policy behind the self-incrimination privilege supra, pp. 199–200. See also note 152 and 166 where Bentham used this same argument to justify religious confession privilege. 192 Wigmore, op cit, Vol 8, p. 543. 193 Idem. There is resonance here with religious confession privilege since, for example, in In re Keller (1887) 22 LR Ir 158, 160, the Reverend Mr Keller pointed out to Judge Boyd at first instance that “the nature and obligations of a Catholic priest or the laws of Catholic discipline, or the laws or usages of Catholic discipline” were subjective matters for the priest and beyond his purview as a secular judge. In re Keller is discussed in chapter four, pp. 109–111. Note, however, that while the High Court of Australia in Wylde v Attorney-General for New South Wales (1948) 78 CLR 224, 262–263 per Latham CJ found that it was not for the court to determine the soundness of any particular doctrine or the wisdom of any particular ritual, the court went on to find that the charitable trust property matters which faced it, could not be resolved without making some such determinations in this case since there were no ecclesiastical courts of law to determine such doctrinal questions (pp 270–271 per Latham CJ). In the United States, the Supreme Court unequivocally banned judicial scrutiny of ecclesiastical decisions (Watson v Jones 80 U.S. [13 Wall.] 679; 20 L. Ed. 666[1872]) but has found ways to decide cases involving theological questions which avoid theological answers but arguably trivialise religious practice (for example, Employment Division v Smith 494 US 872 (1990). Note also that the religious confession privilege recognised by the Uniform Commonwealth Evidence Act (originated in NSW in 1989 by the Evidence (Religious Confessions) Amendment) makes the member of clergy asserting religious confession privilege, the arbiter of whether what was heard was a religious confession or not. This point is discussed infra, p. 211. 194 Wigmore, op cit, Vol 8, p. 543. Lord Simon explained this change in the justification for legal professional privilege in D v NSPCC [1978] AC 171, 238, as did Dawson J in Baker v Campbell (1983) 153 CLR 52, 126–127. 195 Annesley v Earl of Anglesea (1743) 17 Howell St. Tr. 1139. 196 Ibid, p. 1240. 197 Idem. 198 R v Griffin (1853) 6 Cox Cr Cas 219. 191

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comparison because legal professional privilege had become more well known and said: The principle upon which an attorney is prevented from divulging what passes with his client is because without an unfettered means of communication the client would not have legal assistance. The same principle applies to a person deprived of whose advice the prisoner would not have proper spiritual assistance.199

While these eighteenth and nineteenth century religious analogies are unlikely to persuade an Australian court in the twenty-first century where the convincing power and utility of religious symbolism has retreated if it is understood at all, freedom of religious belief and practice has found its way into human rights norms as thoroughly and fundamentally as the right to a fair trial. Indeed, freedom of religious practice arguably including the right to practice religious confession according to the dictates of one’s own conscience200 has greater constitutional entrenchment as a human right in Australia201 than the fundamental common law and human right to legal professional privilege affirmed by the High Court in Daniels. Young and Daniels reflect a judicial inclination to protect the rights of persons accused of crime or likely to be accused of crime, even greater than when self incrimination privilege and legal professional privilege evolved after Tudor times. If the compulsion of evidence of a religious confession would abrogate free exercise of religion by a person accused of crime, then that evidence should be no more compellable than evidence which would incriminate the same person or deny that person confidential access to his legal advisor. For while the public interests which now justify the three privileges are distinct, it is difficult to argue in Australia that the public interest undergirding religious confession privilege is less entrenched than that which undergirds self incrimination privilege and legal professional privilege since only religious confession privilege can argue endorsement in the Constitution.

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Idem. Wright and Graham catalogue extensive American constitutional debate as to whether the free exercise limb of the First Amendment mandates recognition of religious confession privilege or whether the non-establishment limb of the same amendment constitutionally bars it. Their commentary notes that a religious confession privilege statute has never been struck down on the latter ground and that all fifty states now have such statutes, the effective result of the debate being that while such accommodation of religious practice will not violate free exercise, neither will it positively mandate it either (Wright CA, and Graham KW, Federal Practice and Procedure: Evidence, 3rd ed, St Paul Minnesota, West Publishing Co, 1992, Vol 26, pp. 54–78). Note similar discussion of this American constitutional question in Mayes, JE, “Striking down the clergyman-communicant privilege statutes: let free exercise of religion govern” (1986) 62 Indiana LJ 397. 201 ‘Greater’ since free exercise of religion is at least referenced in the Australian Constitution (s 116). 200

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However, while the First Amendment to the United States Constitution protecting freedom of religious belief and practice, now binds the states as well as the Federal Government,202 section 116 of the Australian Constitution only protects free exercise of religion against intrusion by the Federal Government – a protection in the case of religious confessions which is affirmed by section 127 of the Commonwealth Evidence Act of 1995. The High Court of Australia is generally considered to have discountenanced the idea that statutory instruments may exercise “gravitational pull”203 upon the common law jurisdictions without similar statutory instruments since its decision in Esso Australia Resources Ltd v Federal Commissioner of Taxation.204 However, a close review of Esso’s treatment of the idea of statutory gravitational pull upon the common law, reveals that the idea that statutes exercise gravitational pull is alive and well, though it did not assist the court in that case. Gravitational Pull of Religious Confession Privilege Statutes in Australian Common Law Jurisdictions The High Court’s decison in Esso decided two things. Firstly it confirmed that the dominant purpose test is the common law test for claiming legal professional privilege (rather than the sole purpose test which had been preferred since the High Court’s earlier decision in Grant v Downs205). Second, it stated that sections 118 and 119 of the Commonwealth Evidence Act 1995 did not abrogate the common law legal professional privilege in pretrial circumstances by necessary or derivative application even though those sections only anticipated legal professional privilege applying when evidence was “adduced” in court. But the decision in Esso did not decide that the derivative reading of sections of the Evidence Act was inappropriate in all cases in the future. In particular, it did not overrule the suggestion in Akins v Abigroup Ltd that statutes 202 Wallace v Jaffree 472 U.S. 38, 49–50 (1985) held that the Fourteenth Amendment imposes the same substantive limits on US state legislative powers as the First Amendment imposes on Congress. Everson v Board of Education 330 U.S. 1,8,15 (1947) had earlier held that the Fourteenth Amendment binding the States included the First Amendment’s establishment clause and Cantwell v Connecticutt 310 U.S. 296, 303 (1940) contained dictum to similar effect. 203 Mason P used this phrase to justify the derivative application of a statute that recognised the status of “legal professional privilege … [as] a fundamental common law doctrine that furthers the rule of law” (Akins v Abigroup Ltd (1998) 43 NSWLR 539, 546). 204 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49. Spigelman CJ in R v Young (1999) 46 NSWLR 681, 692, observed that Akins v Abigroup Ltd had applied a derivative method of statutory interpretation “in part to follow the Full Federal Court in Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360” which had since been overruled by the Full Federal Court in Esso. He expected that the Esso appeal which was pending when he wrote his Young judgement would decide authoritatively “concerning the derivative application of the Evidence Act 1995”, an “issue that has divided the courts for some years”. 205 Grant v Downs (1976) 135 CLR 674.

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in one Australian jurisdiction might exert gravitational pull on the common law in another. For though McHugh and Kirby JJ disagreed that the sole purpose test for determining the availability of legal professional privilege should be changed, Kirby J affirmed that while there was too much statutory difference in the legal professional privilege context for any state statutory provision to exert influence on common law in other Australian jurisdictions,206 in areas of less complicated law such influence was not only likely, but desirable in the interests of consistency and overall common law seamlessness.207 While admitting that there was a “fundamental difficulty with th[e] line of reasoning”208 that uses statutes analogically “in developing common law principles”,209 the joint majority judgement of Gleeson CJ and Gaudron and Gummow JJ also observed: Certain legislatures in Australia have enacted legislation concerning [legal professional] privilege which differs in a number of respects from the common law principles … One respect concerns whether the test to be applied for determining privilege is the sole purpose test or the dominant purpose test. There are other differences, which are not material to the present case, but which should not be overlooked … Other legislatures have not enacted similar legislation. Furthermore, the legislation, even in the jurisdictions where it applies, in its terms leaves untouched certain areas in which the privilege may operate. In such a setting, there is no consistent pattern of legislative policy to which the common law in Australia can adapt itself. The fragmentation of the common law implicit in the qualification that such adaptation should occur only in those jurisdictions in which the Evidence Act applies is inconsistent with what was said in Lange, and is unacceptable.210

These judges then noted that in unitary jurisdictions like England and New Zealand, it was much easier to keep the common law on a course parallel to related legislation,211 but that was not the position in Australia in the context of legal professional privilege so that analogical adaptation of related statutes did not provide assistance in deciding Esso.212 Such reasoning had provided assistance in Australia in the law related to marital rape where there was a “uniform pattern of legislation in five states”213 denying the old common law proposition “that, by marriage, a wife gave irrevocable consent to sexual 206 This was the reason why James J did not accept that a derivative reading of the NSW sexual assault communications privilege was appropriate in R v Young. He considered that there was too much diversity in the Australian statute law to find a common thread of common law. See notes 85–87 and supporting text. 207 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49, 83, para 91. 208 Ibid, p. 61, para 23. 209 Ibid, p. 61, para 22. 210 Ibid, p. 61, para 23. 211 Ibid, pp. 62, 63, paras 23, 24, 28. 212 Ibid, p. 63, paras 27,28. 213 Ibid, p. 63, para 25 quoting R v L (1991) 174 CLR 379, 390.

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intercourse with her husband”.214 In that case, it was both consistent and appropriate to adapt the old common law so that the law in Australia was consistent and seamless, and so, as the High Court had expressed in Lange,215 “[t]here is but one common law in Australia which is declared by this Court as the final court of appeal”.216 They also noted with approval, a federal United States case217 where the federal common law had been analogically adapted to accord with the theme of related statutes “in every State of the Union”.218 Kirby J’s accord with the majority on Esso’s contention that statutes can and do influence the common law, though not in this case since the legal professional privilege statutes were so diverse, was expressed in these words: I am foremost in accepting the view that the common law operates in a world of statute law. I do not doubt that, the elements of law being interactive, the content of statute law can, and in many circumstances does, influence the content of the common law, and has long done so. As the influence of the Evidence Acts which operate in federal courts and courts of the Australian Capital Territory and New South Wales spreads, they may come to have an effect on the development of the common law in Australia. However the Act presently extends to these three Australian jurisdictions alone. The milieu of statute law in the other jurisdictions is quite different … It would therefore be premature to draw inferences from the Act as to the content of the uniform doctrine of the common law of privilege applicable throughout Australia.219

McHugh J did not address the ‘gravitational pull’ point. Callinan J made observation only that he rejected “the theory that the Act operates to alter the common law, so as in some way to make its provisions applicable to circumstances other than the adducing of evidence”,220 though he did not elaborate whether he rejected analogical theory completely, or whether he too simply disagreed that Commonwealth Evidence Act abrogated legal professional privilege outside a courtroom in this case. The religious confession privilege statute law in Australia is nowhere near as complicated as is the statute law in relation to legal professional privilege. There are seven jurisdictions with statutes confirming such privilege221 and three without.222 Even though the extant statutes express the privilege in

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Idem. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. 216 Ibid, p. 563, as quoted by the majority in Esso at pp. 61–62, para 23. 217 Moragne v States Marine Lines Inc (1970) 398 US 375. 218 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49, 63, para 26. 219 Ibid, p. 81, para 91. 220 Ibid, p. 99, para 144. 221 Religious confession privileges were first passed in the following states on the dates indicated: Victoria (1890), Tasmania (1910), Northern Territory (1939), New South Wales (1989), Commonwealth (1995), Australian Capital Territory (1995), Norfolk Island (2004). 222 Queensland, South Australia and Western Australia. 215

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different ways,223 they feature an unambiguous consistent theme of recognition. In light of the High Court’s confirmation that analogies can and should be drawn between statute law and common law to keep the law of Australia as consistent and seamless as possible224, in the absence of any statutory instrument abrogating religious confession privilege, a decision in the High Court of Australia denying a religious confession privilege of some kind at common law, seems unlikely. If it is further accepted that there is a line of authority in favour of confidential religious communications privilege at English common law, then finding a broader privilege in a contemporary Australian context is not difficult to imagine either. For such a privilege would not be inconsistent with any Australian statute and is clearly consistent with that tolerance which is enjoined by the Australian constitution. Consequences of a Recognition of Religious Confession Privilege at Common Law If the existence of religious confession privilege at common law is accepted, then religious confession privilege legislation will be interpreted against the backdrop of that common law existence. In that context, a religious confession privilege statute affirming religious confession privilege will likely be seen as curing a defect in that underlying common law – either reducing the scope of a privilege deemed too wide by parliament, or strengthening a privilege interpreted too narrowly by past judges. In the absence of any statute expressly abrogating privilege, it is self-evident that religious confession privilege statutes have generally been passed to affirm a common law privilege previously construed too narrowly. That is certainly true of the statutes in New York,225 New Jersey,226 Delaware227 and New South Wales.228

223

The statutory provisions operative in New South Wales, the Australian Capital Territory, and the Commonwealth have been identical since 1995. Tasmania adopted the Uniform Evidence Act including the identical religious confession privilege provision (s 127) and it was proclaimed effective from 1 July 2002 (Evidence Act 76/2001). Norfolk Island adopted the same legislation in 2004. Only the Northern Territory and the state of Victoria now have religious confession privilege statutes that diverge from the Commonwealth template and the Northern Territory’s Law Reform Commission discussion paper which questioned whether the Northern Territory should also adopt the Uniform Evidence Act, observed that the Victorian Law Reform Commission, “[a] Parliamentary Committee of Western Australia and the WALRC” have all “recommended the adoption of the UEA” and that the “Queensland LRC appears to be moving in the same direction, though, perhaps, not as clearly” (www.nt.gov.au/justice/docs/lawmake/ discussion_paper_uniform_evidence_act.pdf p. 3, site last visited June 27, 2006). 224 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. 225 Wright, CA, and Graham, KW, Federal Practice and Procedure: Evidence, 3rd ed, St Paul Minnesota, West Publishing Co, 1992, §5612, pp. 46–47. 226 Allred, VC, “The Confession in Court” (1953) 13 The Jurist 2, 9. 227 Reese, S, “Confidential Communications to the Clergy” (1963) 24 Ohio St LJ 55. 228 McNicol, S, Law of Privilege, Australia, Law Book Co, 1992, p. 330.

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The tension between the public interest in judicial access to all relevant evidence and the existence of any privilege circumscribing that access,229 has recently been answered in favour of privileges or immunities which have achieved status as common law rights absent clear statutory language to abrogate such rights.230 Though religious confession privilege may not in the past have been accepted as having status as a common law right,231 this book’s proof that it existed as a customary inheritance of the common law which has never been reversed, gives it such status. That understanding should lead informed judges to rule against the admission of religious confession privilege evidence232 – and in time, that understanding should also dissuade law enforcement agencies from seeking the disclosure of such evidence. In practice in the criminal courtroom, a more complete understanding of the origins of religious confession privilege would increase the burden of a prosecutor seeking to adduce such evidence. More generous statutory interpretation could include the recognition that the New South Wales legislature intended to leave the decision as to whether a member of the clergy had received a confession with that member of the clergy,233 rather than for judicial determination through a voir dire. While the statutes affirming religious confession privilege in Australian jurisdictions do not conclusively answer the question of whether the privilege belongs to priest or penitent or both, it seems likely that the more explicit confirmation that the priest has an interest in the privilege in the identical Commonwealth/ New South Wales/Australian Capital Territory/Tasmania/Norfolk Island provision will exert some ‘gravitational pull’ on the interpretation of the statutory

229 See, for example, Spigelman CJ in R v Young (1999) 46 NSWLR 681, p. 696, para 74, alluding to Knight Bruce VC in Pearse v Pearse (1846) De G & Son 12 at 28–29; 63 ER 950 at 957. 230 Daniels Corporation v ACCC (2002) 192 ALR 561, 564–565 (para 11, per Gleeson CJ, Gaudron, Gummow and Hayne JJ). 231 See discussion supra, pp. 192–195. 232 In contrast to the unreported decision of a District Court Judge at Orange, New South Wales, on 1 September 1999 (R v Mills), where the judge insisted on a voir dire despite the expressed objections of two clergymen that they were not obliged to disclose that a confession had taken place, let alone disclose its contents under section 127 of the Evidence Act 1995. 233 The statutory provision which was adopted by the Commonwealth when it passed the Uniform Evidence Act in 1995, was originated in New South Wales by the Evidence Amendment (Religious Confessions) Amendment Act 1989 which inserted section 10(6) into the then Evidence Act 1898. Section 127 of both the New South Wales and Commonwealth Evidence Acts have affirmed since 1995 that “[a] person who is or was a member of the clergy … is entitled to refuse to divulge [even] that a religious confession was made, … [and not just] the contents of a religious confession made”. The religious confession privilege provisions in Victoria (The Evidence Act 1958, s 28 which provision has ancestry dating back to 1890), Tasmania (the original provision was s 96 of the Evidence Act 1910, though Tasmania adopted the Uniform Evidence Act in 2001), and the Northern Territory (The Evidence Ordinance 1939, s 12), are not decisive on whether the privilege belongs to priest or penitent or both. Nor has it been decided that the penitent has no separate interest in the privilege under the Uniform provision (which applies in the Commonwealth, NSW, Tasmania, Norfolk Island and the ACT), though it is certainly open to the priest to claim the privilege in these jurisdictions.

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provisions in Victoria and the Northern Territory in the interests of that seamlessness which the High Court has extolled.234 The Victorian statute235 might receive the liberal interpretation signalled by Cooke J236 in R v Howse237 in New Zealand, where the New Zealand Court of Appeal opined that confessions received without the ritual familiar in traditional Christian churches were as entitled to the protection of the privilege as confessions more formally received.238 And further, that while “liberal constru[ction]”239 of the statute did not cancel the requirement that the communication required some “spiritual response”240 to attract the privilege, still “a person should not suffer temporal prejudice because of what is uttered under the dictates or influence of spiritual belief ”.241 Residual Common Law Jurisdictions While recent publicity in South Australia surrounding the introduction of a Private Member’s Bill in Parliament to reduce the ambit of religious confession privilege in child abuse cases suggests that a significant part of that state’s

234 See discussion of “seamlessness” supra, pp. 208–210, and particularly the application of the concept established in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 in Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49. Note that the US religious confession privilege statutes have been categorised by a number of writers according to whom the statute says owns the privilege – the priest, the penitent or both. Julie Ann Sippel found that the penitent held the privilege in thirty-eight states, the priest in eleven, and equivocally, that both held the privilege in Alabama and Ohio (“Priest-penitent privilege statutes: Dual protection in the confessional” (1994) 43 Catholic ULR 1127, 1128, 1134–1135). Michael Mazza found a fourth category where the statutes “seem to be more rules of witness compellability that rules of privilege”, finding that penitent ownership of the privilege is clear in only seventeen states (“Should clergy hold the priest-penitent privilege?” (1998) 82 Marquette LR 171, 183–191). However, the leading authority in the US Federal jurisdiction where there is no statutory privilege, excluded a Lutheran clergyman’s evidence allowed at first instance despite his willingness to give it “in the absence of the penitent’s consent to its use” (Mullen v US (1959) 263 F 2nd 275, 277). Despite this statement, another federal court has found that the clergy hold the privilege, though acknowledging that not all federal courts have yet come to the same conclusion (Eckmann v Board of Education 106 FRD 70,73 (ED Mo. 1985) ). 235 The Evidence Act 1958, s 28. 236 Later President of the New Zealand Court of Appeal (1986–1996), a Member of the Judicial Committee of the Privy Council (1977–2001) and a member of the English House of Lords as a Lord of Appeal (1996–2001) (http://www.politicallinks.co.uk/POLITICS2/BIOG/ ld_BIOGS/bio.asp?id=2208 last visited 10 July 2004). 237 R v Howse [1983] NZLR 246. 238 Cooke J said in interpreting section 31 of New Zealand’s Evidence Amendment Act 1980: “The discarding of the [the requirement that a privileged confession be made in the course of discipline enjoined by a denomination] in 1895 indicates that there does not have to be a formal confession made as a matter of religious duty or ritual or established custom” (ibid, p. 250). 239 Idem. 240 Idem. 241 Ibid, p. 251.

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population believes there is a religious confession privilege at common law,242 academic evidence text writers have generally denied that lay expectation.243 The recognition that such academic assertion is mistaken, would see the lay belief in the existence of a common law privilege affirmed in not only South Australia, but also Western Australia and Queensland, where legislation affirming religious confession privilege has never been passed. The acceptance of this book’s finding that there is a religious confession privilege at common law, would also correct misapprehension in future law reform commissions which are otherwise likely to repeat the denials of their predecessors244 as they have simply parroted the standard textual denials.245 Such future Law Reform consideration will then be enabled to provide more enlightened consideration, advice and recommendations about how the law can most appropriately be improved in its delivery of social justice. Conclusion All of the High Court of Australia judges who have made curial reference to religious confession privilege first hand, have denied that it existed at common law. In each such reference however, the comments were obiter dicta and

242 In September 2003, Nick Xenophon, then an independent Member of the House of Representatives in South Australia, introduced the Children’s Protection (Mandatory Reporting) Bill 2003, proposing to abrogate religious confession privilege in cases where child abuse was alleged. The legislature deferred the bill and Nick Xenophon advised the writer that he did not have the votes to see the bill passed into law. 243 For example, the 2000 6th Australian Edition of Cross on Evidence (Butterworths, Sydney, para 25310) and the 13th edition of Phipson on Evidence in 1982 (Buzzard, JH, May, R, and Howard, MN, eds, London, Sweet & Maxwell, para 15–09) still assert that there is no religious confession privilege at common law. 244 The 1985 ALRC report (Report 26, Vol 1, p. 253) stated that “[i]t is generally accepted that the better view of the common law cases is that no privilege is recognized as arising out of the priest-penitent (or minister-parishioner) relationship”. The Commission’s 1987 report (#38, para 210, p. 119) stated that religious confession privilege only existed then in three jurisdictions (Victoria, Tasmania and the Northern Territory), and was limited to churches having sacramental confession. The Queensland LRC (Report No 41, 1991) did not address the common law position but its recommendation against creating a statutory privilege analogous to that then recently created in New South Wales because “[t]he integrity of the legal system relies upon access to the truth” (ibid, p. 1), implies that that Commission believed there was no privilege at common law. The West Australian LRC’s 1993 summary of the common law was that “it appears [clerics have no right] to refuse to reveal confidential communications to courts” (Project No 90, p. 75). 245 The ALRC’s 1985 Report (#26, Vol 1, para 202, p. 253) cites Halsbury’s 4th edition, the second Australian edition of Cross on Evidence (1979), the 12th edition of JF Stephen’s Digest of the Law of Evidence (1948), Phipson’s 12th edition (1976), McNaughton’s 1961 revision of Wigmore on Evidence and Hoffman’s 1970 South African Law of Evidence in support of this proposition. Only Nokes’ 1950 article suggesting the question “might appear to be open” (Nokes, GD, “Professional Privilege” (1950) 66 LQR 88, 98) is cited to other effect.

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recognised the existence of religious confession privilege by statute in Australia.246 Crisp J implicitly recognised common law religious confession privilege in a case that involved the interpretation of Tasmania’s previous religious confession privilege statute, but again his comments were obiter and did not manifest significant research.247 The New South Wales Court of Criminal Appeal’s majority reasoning in R v Young248 suggests both that new privileges are unlikely to be acknowledged in Australia unless they are already recognised in practice in the public consciousness; and that the common law rights of an accused person will not be easily extinguished, particularly if a statute leaves room for doubt of the legislative intent. The High Court decision in Daniels249 confirming legal professional privilege as a fundamental common law human right, may not be of much analogical assistance if an appellant were not able to convince the court that religious confession privilege is a well settled common law principle.250 However, the widespread lay belief in the existence of religious confession privilege;251 the “gravitational pull”252 of religious confession privilege statutes in seven out of ten253 Australian jurisdictions; the recognition of a case-by-case confidential religious communications privilege in the Supreme Court of Canada;254 the respect due to constitutional religious freedom;255 and the recognition of freedom of conscience and belief in international human rights instruments,256 all suggest that the High Court of Australia would recognise a confidential religious communications privilege (including a religious confession privilege) in practice. That is not to say that judges in lower courts would be similarly

246 McGuinness v Attorney-General (Vic) (1940) 63 CLR 73, pp. 102–103, per Dixon J; Baker v Campbell (1983) 153 CLR 52, per Gibbs CJ (pp 65–66) and per Dawson J (p 128). 247 R v Lynch [1954] Tas SR 47. 248 R v Young (1999) 46 NSWLR 681. 249 Daniels Corporation v ACCC [2003] 192 ALR 561. 250 The Supreme Court of Canada was not convinced that a confidential religious communications privilege existed at common law in Canada (R v Gruenke [1991] 3 SCR 263, 287–288, per Lamer J). 251 This was Spigelman CJ’s threshold criterion for the recognition of a new privilege in R v Young (1999) 46 NSWLR 681, 700–701, paras 93 and 102. 252 Akins v Abigroup Ltd (1998) 43 NSWLR 539, 547–548, per Mason P. 253 Religious confession privilege statutes have existed in Australian jurisdictions since the years shown: Victoria (1890), Tasmania (1910), Northern Territory (1939), New South Wales (1989), Commonwealth (1995), Australian Capital Territory (1995), Norfolk Island (2004). 254 R v Gruenke [1991] 3 SCR 263. 255 Australian Constitution 1901, section 116. 256 Article 18 of the United Nations’ Universal Declaration of Human Rights 1948; Article 2.2 of the United Nations’ International Covenant on Economic, Social and Cultural Rights 1966; Articles 2.1 and 18 of the United Nations’ International Covenant on Civil and Political Rights 1966, together with the 1966 Optional Protocol to the International Covenant on Civil and Political Rights by which all parties (including Australia) “recognize[d] the competence of the [United Nations Human Rights] Committee to receive and consider communications from individuals … claim[ing] to be victims of a violation by that State Party of any of the rights set forth in the covenant” (ibid, Article 1).

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inclined in the three remaining common law jurisdictions.257 In the unlikely event that a court did become aware of the potential evidence of a member of the clergy, the writer expects that the paradigmatic judicial expectation of access to all the evidence in the interest of justice, despite the competing public interest in clerical confidentiality, would see the conduct of a voir dire at least. The only judge likely to resist prosecution access to religious confessional evidence, would be a judge aware of the common law outlined in this book, including the existence of a judicial discretion not to review such evidence at all. The recognition that there is a religious confession privilege at common law, will also have a significant influence in Australia’s seven existing statutory jurisdictions. For the knowledge that this statutory privilege was not created ex nihilo but exists as modern confirmation of a misunderstood and ancient common law ‘right’, would burden the prosecution to prove why evidence of a confidential religious communication should be admitted. Where a judge otherwise entitled to see all the evidence believes that a religious confession privilege statute is an innovation, that judge is more likely to construe the statute narrowly and thus burden the defence to demonstrate why the communication at issue is covered by the relevant provisions.

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CHAPTER EIGHT

RELIGIOUS CONFESSION PRIVILEGE AT COMMON LAW IN THE UNITED KINGDOM AND IRELAND Introduction In tracing the origin and development of religious confession privilege from canon law into the common law, I have already established that materials from which a modern court in the United Kingdom might identify a contemporary form of common law religious confession privilege, still exist. The question that remains is to identify what a British court would decide if a bona fide religious confession case arose for adjudication there in the twenty-first century. The question is whether a correct understanding of the common law on religious confession privilege, the UK Human Rights Act 1998 or Strasbourg jurisprudence will have any impact on or outweigh the traditional text denials that there is any such privilege at common law. Because the British common law materials have already been thoroughly considered in chapters one through six, this chapter will discuss how the issue of ‘religious confession as a human right’ might reduce the influence of the obiter pronouncements of Sir George Jessel1 and Lord Denning2 against religious confession privilege. Would the material already provided in this book facilitate a unique and modern British religious confession privilege at common law, or does the existence of the European Convention on Human Rights (the Convention)3 and more recently the Human Rights Act (the HRA),4 mean that a current case would be decided by a species of constitutional or statutory interpretation? This consideration will necessarily include discussion of existing British and European jurisprudence in human rights cases since those

1 Anderson v Bank of British Columbia (1876) 2 Ch D 644, 650–651; Wheeler v LeMarchant [1881–5] All ER 1807, 1809. 2 McTaggart v McTaggart [1949] Probate 94, 97–98; Attorney-General v Mulholland and Foster [1963] 2 QB 477, 489–490. 3 Convention for the Protection of Human Rights and Fundamental Freedoms, (1950), Rome, 4 November 1950, in force 3 September 1953, 213 UNTS 221. Joanna Harrington notes that it was “a treaty largely drafted by British lawyers and ratified first by Britain in 1951” (“The British Approach to Interpretation and Deference in Rights Adjudication”, in Constitutionalism in the Charter Era, Huscroft G., and Brodie I., eds., LexisNexis Butterworths, 2004, p. 271, citing Lester, “Fundamental Rights: The United Kingdom Isolated?” [1984] PL 47 and Marston, “The United Kingdom’s Part in the Preparation of the European Convention on Human Rights” (1993) 43 ICLQ 819. 4 1998, c 42 (UK).

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decisions are likely predictive of the approach British courts would take in a religious confession privilege case. This chapter will conclude that, like Australian and Canadian courts, British courts are likely to recognise religious confession privilege and even some form of religious communications privilege in the future in cases that do not involve national security or sensitive social issues like child abuse. However, even though the House of Lords “ha[s]… declared that the margin of appreciation does not apply”5 in British domestic courts, absent the passage of a religious confession privilege statute, in hard cases the English courts will weigh the competing public interests before deciding whether to coerce the disclosure of confidential religious communications or not. This practice will accord with both the ‘case-by-case’ approach adopted in Canada, and the old discretionary approach alluded to by Lord Denning in Attorney-General v Mulholland and Foster.6 It will also come very close to the use of the European ‘margin of appreciation’ doctrine in English domestic law despite the House of Lord’s statement cited above that it does not apply. The Human Rights Act 1998 Ian Leigh has described the UK HRA, as a revolution.7 He says “[t]he Home Secretary’s pre-publicity…trailed this as the biggest legal reform since the Bill of Rights 1689”.8 Joanna Harrington says that it has become clear that the HRA has brought about profound and significant change within the U.K…and serves as Britain’s first modern bill of rights…‘to give further effect’ to the rights and freedoms guaranteed under European Convention on Human Rights9

Leigh-Ann Mulcahy summarizes that “[t]he effect of the HRA has been to root the Convention firmly into domestic law”10 which has

5 Leigh I., “The UK’s Human Rights Act 1998: An Early Assessment”, in Litigating Rights, Perspectives from Domestic and International Law, Huscroft G., and Rishworth P., eds., Hart Publishing, Portland Oregon, 2002 p. 328 citing R v CPP, ex parte Kebilene [2000] 2 AC 326, 380–381 per Lord Hope. Note however that Joanna Harrington suggests that the “obligation of deference” imposed upon British domestic courts when exercising their new interpretive function under section 3 of the HRA is “the domestic analogue of the doctrine of the margin of appreciation, which [the European Court of Human Rights] borrowed initially from French administrative law” (Harrington, J., “The British Approach to Interpretation and Deference in Rights Adjudication”, in Constitutionalism in the Charter Era, Huscroft G., and Brodie, I., eds., LexisNexis Butterworths, 2004, pp. 291–293). 6 Attorney-General v Mulholland and Foster [1963] 2 QB 477, 489–490. 7 Op cit., p. 323. 8 Idem, citing White Paper, Rights Brought Home: The Human Rights Bill, CM 3782 (1997). 9 Harrington, op cit., pp. 269–270 citing Lord Woolf CJ’s British Academy Lecture, “Human Rights: Have the Public Benefited?”, The British Academy Thank-Offering to Britain Fund Lecture (October 15, 2002) (http://www.britac.ac.uk/pubs/src/tob02/index.html). 10 Human Rights and Civil Practice, Sweet and Maxwell, London, 2001, para 1.02.

Common Law in the United Kingdom and Ireland 219 raised the prospect of the fused practical application of no fewer that four streams of human rights law and jurisprudence: (1) domestic “human rights law”, both at common law and under the HRA; (2) human rights law derived from the European Convention on Human Rights; (3) ‘human rights’ recognised as general principles of law under the jurisprudence of the Court of Justice of the European Communities and in other sources of Community law; (4) international law relating to the protection of fundamental rights.11

Though the United Kingdom had ratified the Convention in 1951, it had not been incorporated in British domestic law until that was accomplished by the passage of the HRA in 1998.12 Because British law follows a ‘dualist’ (two-step) tradition13 where the incorporation of ratified foreign treaties into domestic law is concerned, technically ratification of the Convention in 1951 did not alter domestic law.14 British domestic courts were not obliged to recognise the Convention in any way until the British parliament at Westminster passed additional law defining the way in which the Convention would be woven into the fabric of domestic law and how it should be treated by domestic courts thereafter. And while the HRA has ensured that the Convention became an enmeshed element of the fabric of United Kingdom domestic law since the year 2000,15 the Convention had exerted increasing influence over United Kingdom domestic law for more than thirty years before that. That is because in 1965, the United Kingdom expressly consented to the Convention’s right of individual petition.16 That consent had seen a “steady stream of cases”17 cross the channel to the European Court of Human Rights at Strasbourg in France for adjudication since domestic courts at home did not have the power to take Convention rights into account in their decisions. Even though Britain did not fare well in the Strasbourg cases,18 “in most cases, the U.K…accepted the result and then instigated various changes at home to improve the protection 11

Ibid, para 1.04. Harrington, op cit, p. 271. Note that the HRA took effect in England from October 2, 2000 but because of devolution arrangements with Ireland, Wales and Scotland, the Convention has taken effect from different dates in those countries. These details are outlined infra pp. 250–252. 13 Himsworth C.M.G., and O’Neill C.M., Scotland’s Constitution: Law and Practice, LexisNexis, UK, 2003, p. 61. 14 R v Secretary of State for the Home Department, Ex Parte Briand [1991] 1 AC 696, 747 per Lord Bridge of Harwich. 15 See note 10. See also discussion infra pp. 220–223, 229–249. 16 Harrington, op cit, p. 272. 17 Idem. 18 Harrington states that “Britain’s record of rights violations before the European Court of Human Rights…was one of the worst” among European states notwithstanding assertions that the British tradition of “liberty according to law” defined by the common law protected rights “better than any country which has a Bill of Rights or Declaration of the Rights of Man” (op cit., citing Jennings, Sir I., The Approach to Self-Government (1958), p. 20; Clayton R, and Tomlinson H, The Law of Human Rights, Oxford University Press, 2000, at paras. In.02 and 1.22, note 71; and Klug et al., The Three Pillars of Liberty: Political Rights and Freedoms in the 12

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afforded to Convention rights.”19 Hence in 1997 the time was right to “bring rights home” as the British Labour Party’s successful election campaign that year promised.20 The core elements of the regime change wrought by the HRA are set out in sections 3 and 4. Section 3 requires named courts interpreting any legislation in the United Kingdom in the future, to favour an interpretation of that legislation which is consistent with the human rights set out in the European Convention on Human Rights – so that there should be no need in future for UK citizens to seek remedies in Strasbourg. If, despite its best efforts, such a court could not find an interpretation of relevant legislation which was consistent with the Convention, then section 4 provided those courts would decide the case anyway in accordance with the applicable law, but report the human rights defect in the legislation in question with a declaration of incompatibility to the UK Parliament which could then as a sovereign body, decide whether to remedy the identified defect or not. The HRA was specifically drafted to preserve the sovereignty of the UK parliament. Those sections provide: Legislation 3 Interpretation of legislation (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. (2) This section— (a) applies to primary legislation and subordinate legislation whenever enacted; (b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and (c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility. 4 Declaration of incompatibility (1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. United Kingdom, ….1996, pp. 48–54. Harrington adds that “[i]t was widely known when the HRA was introduced in Parliament that the U.K. was second only to Italy in the number of cases it lost before the European Court of Human Rights” (op cit., p. 271). Leigh notes that “the UK has been found to be in breach of the Convention on more than fifty occasions” (op cit., p 330). 19 Harrington, op cit., p. 273. 20 Harrington notes that the British Labour Party issued their consultation paper Bringing Rights Home: Labour’s Plans to Incorporate the European Convention in UK Law in February 1997; they won the General Election on May 1, 1997 and introduced the Human Rights Bill in October 1997 along with a White Paper entitled Rights Brought Home: The Human Rights Bill, CM 3782, 1997 (op cit., p. 273).

Common Law in the United Kingdom and Ireland 221 (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. (3) Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right. (4) If the court is satisfied— (a) that the provision is incompatible with a Convention right, and (b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility, it may make a declaration of that incompatibility. (5) In this section “court” means— (a) the House of Lords; (b) the Judicial Committee of the Privy Council; (c) the Courts-Martial Appeal Court; (d) in Scotland, the High Court of Justiciary sitting otherwise than as a trial court or the Court of Session; (e) in England and Wales or Northern Ireland, the High Court or the Court of Appeal. (6) A declaration under this section (“a declaration of incompatibility”)— (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and (b) is not binding on the parties to the proceedings in which it is made.

While section 3(1) sanctions a form of judicial review,21 it does not give the courts the power to “override”22 or “strike down”23 statutes in the sense familiar from the United States since Marbury v Madison.24 Rather when it is suggested that rights are impugned by a statute, the courts must look for ‘an interpretation’ which respects Convention rights. If no such reasonable interpretive possibility exists, then section 4 provides what Ian Leigh calls an “escape hatch”25 to preserve Parliamentary sovereignty – the declaration of incompatibility. The Courts cannot declare the legislation invalid. That is not their role under the HRA.26 They can merely draw the problem to the attention of Parliament by

21

Rishworth P., “The Inevitability of Judicial Review under ‘Interpretive’ Bills of Rights: Canada’s Legacy to New Zealand and Commonwealth Constitutionalism?”, in Constitutionalism in the Charter Era, Huscroft G., and Brodie I., eds., LexisNexis Butterworths, 2004, p. 233 where Rishworth points out that the deference paid to parliamentary sovereignty in New Zealand’s Bill of Rights Act and the United Kingdom’s HRA, does not and can not prevent them from “rul[ing] on the ‘rights-consistency’ of statutes (ibid, p. 262). 22 Leigh, op cit., p. 323. 23 Ibid, p. 235 where Rishworth points out that the words “struck down” are metaphorical. Even in jurisdictions where the courts are granted power to impugn, annul, hold invalid or declare a law void, the law does not cease to exist. It was still passed through the relevant law making body and exists on the relevant statute books. Its future effects are merely cancelled. 24 Marbury v Madison 5 U.S. 137 (1803). 25 Leigh, op cit., p. 324. 26 Ahdar R., and Leigh I., Religious Freedom in the Liberal State, Oxford University Press, 2005, p. 104.

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making a declaration of incompatibility and then they must leave the problem of Convention breach to Parliament to resolve using a remedial order procedure.27 In the meantime, the legislation under question continues to operate according to its tenor.28 If Parliament does nothing to rectify the problem as identified by the courts, an individual must tread that previously well-worn path to Strasbourg in the search for a remedy. But it has been expected that the path to Strasbourg will become overgrown with time since Parliament is unlikely to ignore declarations of incompatibility from Britain’s highest courts.29 And indeed, even in the rare30 and awkward cases31 so far where there the courts have issued declarations,32 Parliament has acted to remedy the problems just as they did when Strasbourg found a breach in pre-HRA days.33 In an appendix to his judgement in Ghaidan v Godin-Mendoza,34 in 2004, Lord Steyn noted that 6 years after the HRA was passed into law, there had been “10 cases [where] the court used their interpretative power under section 3 and…15 cases [where] the courts made declarations of incompatibility under section 4”.35 A further 4 years later, the Lord Chancellor and the Secretary of State for Justice reported to Parliament that 26 declarations of incompatibility have been made. Of these…17 have become final (in whole or in part) and are not subject to further appeal; 8 have been 27

Idem. Section 3 (2)(b) provides that section 3 “does not affect the validity, continuing operation or enforcement of any incompatible primary legislation”. 29 Under Section 4(5) of the HRA, only the House of Lords, the Judicial Committee of the Privy Council, the Courts-Martial Appeal Court, the Scottish High Court of Justiciary and the High Courts and Courts of Appeal of both England and Ireland, may make declarations of incompatibility. 30 Harrington says that the Lord Chancellor and Home Secretary both expected that “judicial declarations of incompatibility” would be rare. They expected that most of the time, the courts would be able to interpret the legislation [in] compatibility with the [C]onvention” (op cit.,p 289 citing debates in both the House of Lords and the House of Commons, February 5 and 16, 1998 respectively). 31 For example, after Bellinger v Bellinger [2003] 2 AC 467, the House of Lords issued a declaration of incompatibility to effect that the Matrimonial Causes Act 1973 law which failed to allow the court to recognise a “post operative male-to-female transsexual” (Harrington, op cit., p. 284) as a woman was inconsistent with the Convention. Because the European Court of Human Rights issued a “judgment reversing past …jurisprudence” on the issue at the time when “the Bellinger case was pending”, the British Government promised “to bring forth primary legislation to allow transsexual people who can demonstrate that they have taken steps toward living fully and permanently in the acquired gender to marry in that gender” (ibid, pp. 300–301). 32 Ian Leigh notes three declarations of incompatibility “[i]n the first seven months’ operation of the Act” (op cit., p. 324); Harrington quotes Starmer’s report of nine such declarations in England and Wales and “a tenth… in Northern Ireland” during the HRA’s first two years of operation (Harrington, op cit., p. 289 citing Starmer, “Two Years of the Human Rights Act” [2003] 1 Eur. H.R.L. Rev. 14, 18–19). But she believes that the Lord Chancellor’s “prediction” that only 1/100 cases will require a declaration of incompatibility, has been met (op cit., pp 289, 291). 33 See note 18. 34 Ghaidan v Godin-Mendoza [2004] 2 AC 557 35 Ibid, para 39. 28

Common Law in the United Kingdom and Ireland 223 overturned on appeal, of which 2 remain subject to further appeal; and 1 remains subject to further appeal.36

In the absence of any religious confession privilege statute anywhere in the United Kingdom to determine how a claim of religious confession privilege might be treated in United Kingdom jurisdictions since 1998, we must first determine whether religious confession privilege constitutes a protected right under the Convention. It should be noted that none of the twenty-five cases which Lord Steyn analysed in the appendix to his judgment in Ghaidan v Godin-Mendoza,37 raised matters for consideration under article 9 of the Convention. Religious Freedom Under the Convention Article 9 of the Convention reads: 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of other.38 There seems little doubt that religious confession itself is a manifestation of religious belief or such a long established religious practice that it is or should be protected as a right by this language in the Convention.39 But is the member of the clergy who receives the confession and who is expected by the church and the penitent to keep the confession confidential, similarly manifesting religious belief or engaging in a religious practice when the confession is heard? And is it an essential element of that practice that the member of the

36 “Responding to Human Rights Judgments, Government Response to the Joint Committee on Human Rights’ Thirty-first Report of Session 2007–2008 (http://www.official-documents.gov. uk/document/cm75/7524/7524.pdf, site last visited September 5, 2009). Information stated to have been last updated as at January 21, 2009. 37 Ghaidan v Godin-Mendoza [2004] 2 AC 557, para 52. 38 Convention for the Protection of Human Rights and Fundamental Freedoms (1950), Rome, 4 November 1950, in force 3 September 1953, 213 UNTS 221. 39 Note however that the European Commission in Arrowsmith v United Kingdom, App No. 7050/75 “developed a means of confining the range of eligible manifestations…[which] has been followed in subsequent decisions” (Taylor, P.M., Freedom of Religion: UN and European Human Rights Law and Practice, Cambridge University Press, 2005, p. 210). This ‘limitation doctrine’ is discussed infra pp. 238–239.

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clergy concerned be protected from any compulsion to disclose what was learned whilst participating in that practice? These questions too seem to require an affirmative answer, for any compulsion to disclose would surely negate the promise of freedom which is the essence of every right set out in the Convention. However, what is it about the member of the clergy’s role in the confessional setting, that would make the compulsion of testimony about what was said, an intrusion into and an abrogation of a member of the clergy’s free exercise of religion? Members of the clergy have at least three ‘freedom of religion’ reasons to resist compulsion to disclose confessional confidentiality that are separate and independent from the reasons that a penitent might express. First, there is the risk of ecclesiastical discipline to the member of the clergy if confessional confidence is broken. Secondly, for religious institutions that endorse confession as an integral part of the repentance process, the integrity of the confessional institution relies on the confidentiality of the process. And thirdly, there is the theological belief in some religious organisations that a member of the clergy acts as a proxy for God when confessions are received, so that the member of the clergy does not know them personally, or would require God’s explicit permission to release the information. While this third reason may not seem compelling in a secular society, it is difficult to escape the consequential insight, that one cannot deny the argument without denying the sincere conscientious beliefs of both the priest and penitent so engaged. Ecclesiastical Discipline The discipline that flows from breach of the seal of confession in Roman Catholic canon law is perhaps the best example that may be cited to demonstrate that confidentiality is essential if a priest receiving a confession is to have any meaningful right to manifest his religion. Canon 1388 states: A confessor who directly violates the seal of confession incurs an automatic (latae sententiae) excommunication reserved to the Apostolic See; if he does so only indirectly, he is to be punished in accord with the seriousness of the offense.40

McManus’ following commentary in The Code of Canon Law, A Text and Commentary,41 explains: Traditionally one of the most severely penalized offenses has been the violation of the seal of confession because of the serious breach of confidentiality of the priest-penitent relationship. The sacramental seal is the strict and inviolable obligation of keeping secret all matters that have been related to the confessor for the purpose of obtaining absolution, the revelation of which would render the 40 McManus, FR, “The sacrament of penance” (The Code of Canon Law, A Text and Commentary, Coriden, Green and Heintschell, editors, New York/Mahwah, Paulist Press, 1985) p. 927. 41 Idem.

Common Law in the United Kingdom and Ireland 225 sacrament odious and onerous…The seriousness of the offense is clear from the fact that it is one of only five excommunications reserved to the Holy See.42

If a Roman Catholic priest breaches this canonical seal under legal compulsion, he will be excommunicated from the church and cannot be reinstated without Papal approval. He will therefore lose his vocation as a priest. Accordingly it might also be suggested that any attempted judicial coercion of a priest to testify about confessional secrets would entitle the priest to claim not only a religious confession privilege but also a self-incrimination privilege since the consequence of such disclosure would be a dire ecclesiastical sanction.43 As was explained in detail in chapter three,44 the canon law of the established church of England, still “imposes an obligation…not to break the ‘seal of confession’ under pain of irregularity”45 upon the clergy which would also terminate the vocational opportunities of an Anglican priest for all practical purposes. Confessional Integrity Relies on Confidentiality The integrity of the confessional institution would be severely undermined in churches whose confessional practice involves an intermediary between the penitent and God. For as the commentary on Catholic Canon 1388 above states, disclosure “would render the sacrament odious and onerous”. Analogously, Wigmore observed that one element forming an essential part of the justification for the recognition of any evidential privilege, was a finding that “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”.46 Few churches would disagree with the proposition that the confidentiality of confessional communications was an essential ingredient of their penitential practice. And one runs into syllogistic circularity when trying to advance understanding of this issue any further since one cannot disagree with such an assertion without disavowing the freedom of conscience of those who believe it. Certainly it is likely that the confidence of religious believers in the utility of confessional practice would be prejudiced if the clergy did not respect their confidences.

42

Idem. McNicol doubts that a priest compelled to disclose a confession “would be covered by the common law privilege against self-incrimination…[since] ecclesiastical censure or excommunication would come about as a result of the act of disclosure itself rather than from the content of a disclosure”. But she does countenance the residual possibility that “incrimination of a priest under the canon law might fall under the general category of incrimination under a foreign system of law” (McNicol, SB, Law of Privilege, Australia, Law Book Co, 1992, 326). 44 Supra, pp. 77–79. 45 Leeder, L, Ecclesiastical Law Handbook, London, Sweet & Maxwell, 1997, p. 355, para 10.77. 46 Wigmore, JH, Evidence in Trials at Common Law, Revised by John T McNaughton, Boston, Little Brown, 1961, Vol 8, p. 527. 43

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Chapter Eight The Clergy as Proxies – is God Entitled to an Evidentiary Privilege?

And then there is the pure theological proposition that a priest cannot disclose a confession received at all since he only received it as an intermediary for God. While many an eavesdropper has been sub poenaed to give evidence in litigation, it is noteworthy that those who mediate for other privilege beneficiaries are normally covered by any privilege to which their principal is entitled.47 Does God have a privilege? While it is difficult to sub poena deity into a courtroom, perhaps the logic does not have to reach this level of unreality for us to appreciate that once again there is syllogistic circularity here. To deny such a sincere assertion is to deny the underlying freedom of conscience, thought and belief of the holder. Matthews and Spear, and Hageman quote the sixteenth century canonist Mascardus for a theological version of this justification of the priest’s free exercise of religion interest in maintaining the confidentiality of confessions: The Roman Church has adopted [the principle that confessions ought to be privileged at law] in its fullest extent…for Mascardus – after observing that, in general, persons coming to the knowledge of facts under an oath of secrecy are compellable as witnesses to disclose them, - states that confessions to a priest are not within the operation of the rule, since they are made not so much to the priest as to the Deity whom he represents; and he thence draws the conclusion that the priest, when appearing as a witness in his private character, may lawfully swear that he knows nothing of the subject.48

Coke criticised the similar Catholic practice of ‘equivocation’ when he prosecuted Father Henry Garnet for misprision of treason in connection with the Gunpowder plot49 and one can sympathise with his cynicism about this theological justification for what seems like a species of perjury. But there is no denying the sincerity of the priestly religious conviction which completely surrounds confessional practice in many religious traditions. Article 9(2) Limitations Article 9(2) of the Convention clarifies that fundamental though it is accepted to be, the freedom to manifest one’s religion or beliefs is not an absolute right. That the limitations expressed do not attach to the freedom of thought,

47

For example, note that the interpreter who was sub poenaed in Du Barré v Livette (1791) 1 Peake 108; 170 ER 96, was held by Lord Kenyon CJ to be protected by the same legal privilege of which the defendant was the beneficiary. 48 Matthews, JB, and Spear, GF, A Treatise on the Law of Evidence as Administered in England and Ireland by His Honour the late Judge Pitt Taylor, 11th ed, London, Sweet & Maxwell, 1920, p 623, but see essentially the same summary and quote in Hageman, JF, Privileged Communications as a Branch of Legal Evidence, Princeton, New Jersey, Honeyman & Co, 1889, pp. 123–124. 49 Garnet’s case (1606) 2 Howells State Trials 217, 233–234, 238–239.

Common Law in the United Kingdom and Ireland 227 conscience and belief protected in the opening words of Article 9(1) seems axiomatic.50 Read as a whole, the Article seems to confirm that freedom of thought, conscience and belief is absolute. Referred to as the forum internum, this is the purely theoretical part of freedom of thought, conscience and belief. But it is only theoretical in the sense that it is currently not possible to more than surmise what a person believes unless those beliefs are physically manifested in some overt way. Manifestations of belief are generally considered to be part of the forum externum since they occur outside of the mind, but the line which the ECHR requires to be drawn between the forum internum and the forum externum cannot be simply drawn. Many manifestations of thought, conscience and belief are so inextricably tied together with the thoughts themselves as to be inseparable from them. Article 9(2) however says that manifestations of thought, conscience and belief are not absolutely protected. Manifestations of thought, conscience and belief are only protected so long as they do not endanger public safety, public order, public health and morals or the rights and freedoms of others. But all these limitations are pliable since ‘harmless’ manifestations of belief can be deemed subversive in times of social unrest. The question is whether there should be some protected space where low level objectively non-controversial manifestations of thought, conscience and belief are absolutely protected? Certainly the preaching of pacifism in wartime will always agitate community feelings, but what about going to a church building; lighting a candle; praying vocally or silently when kneeling; evangelising or proselyting to tell others about the ‘way of happiness’ an individual has found? In the context of this book however, the crucial question is whether shriving oneself to a priest counts as part of the forum internum protected under Article 9(1), or whether it counts as a manifestation of thought, conscience and belief which is subject to the limitations set out in Article 9(2)?51

50 Note however that Michael Perry suggests that no human right, no matter how fundamental, is ever absolute (The Idea of Human Rights: Four Inquiries, Oxford University Press, 1998, pp. 83–88). He demonstrates with the hypothetical example of the right to torture and asks if even the breach of that absolute right could not be justified if the only way to uncover a terrorist plot to nuclear bomb a large western city and kill millions of innocent people, was to torture and/or kill a family member of the terrorist in front of him with a similar threat to continue doing so until the plot was revealed. 51 Carolyn Evans notes that “[t]he neat distinction between the internal and external realm is difficult to maintain” in cases where “a person was required to participate in the worship or rites of a religion with which he or she did not agree, or to recant his or her own religion”. While she notes no such case has come before the European Court of Human Rights, two similar cases involving “Jehovah’s Witness children who were punished for refusing to take part in what they perceived to be a military parade” were rejected by the Court on the basis that the right to manifest religion was at stake (op cit., p. 77 citing Valsamis v Greece, 2 Eur.Ct. HR (ser. A) 2312 (1996-VI) and Efstratiou v Greece, 27 Eur.Ct. HR (ser. A) 2347 (1996-VI). Evans also notes the external-internal dichotomy lay at the heart of the United States Supreme Court’s controversial decision in Wisconsin v Yoder, 406 US 203 (1972) where it was held that the Amish were entitled to an exemption from the Wisconsin state requirement that all children remain in school

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Can the limitations expressed in Article 9(2) justify the abrogation of an individual’s right to have a confessor keep that person’s confessions sacred and completely confidential? Are confessions part of the untouchable forum internum because they are inextricably connected with mere belief, or are they a reviewable outward act, a clear and separate manifestation of belief? This is the old chestnut that arose in Garnet’s case in 1605.52 Coke as prosecutor and later as commentator53 said in effect that the individual’s confidentiality was completely protected except in a case of treason. It has been demonstrated earlier in this book, that the precedents Coke cited for his conclusion do not stack up.54 But his expression of this exception as a principle, certainly resonated with the majoritian anti-Catholic hysteria of that time in England. Coke would doubtless argue today that the coercion of the disclosure of any confession Father Henry Garnet might have received from one of the Gunpowder Plotters or from an under-priest who had received such a confession,55 is justified under Article 9(2) because that disclosure is necessary “in the interests of public safety, for the protection of public order…[and for] the protection of the rights of others”.56 This, despite any argument that religious confession is a matter of mere belief and not a manifestation of religion within the meaning of Article 9(2). It is also a simple matter to imagine a confessional secret, the abrogation of which could be justified in the interests of the remaining two exceptions – health and morals.57 Imagine that an individual had confessed to secreting a poison in the primary water supply of a major city, or that that individual’s confession involved a connection with a lucrative but currently hidden internet pornography business which exploited little children. But what about confessions of smaller crimes - confessions of sins that are misdemeanours rather than felonies; and what if neither the individual nor the confessor breathed a word? Could the authorities bug the confessional box or the private office where a confession was made in a less formal setting but nonetheless, in a manner that was acceptable according to the tenets of the

until the age of sixteen (Freedom of Religion under the European Convention on Human Rights, Oxford, Oxford University Press, 2001). 52 Garnet’s case (1606) 2 Howell’s State Trials 217. 53 Coke, Sir E, The Second Part of the Institutes of the Laws of England, New York, Garland Publishing Co, 1979, p. 629. 54 Supra, chapter 2, pp. 39–54. 55 Supra, pp. 56–58. Garnet claimed he had not taken a confession about the plot from any of the accused plotters. Two years previously one of them named Catesby had asked him a theological question as to whether one was guilty of destroying innocent lives if such were killed in an otherwise noble cause (Garnet’s case (1606) 2 Howell’s State Trials 217, 229, 240–241), and because a junior priest had expressed considerable disquiet to Garnet over a confession he had received about a prospective plot that had become known to that junior priest in confession (ibid, pp. 229–231). 56 Convention for the Protection of Human Rights and Fundamental Freedoms (1950), Rome, 4 November 1950, in force 3 September 1953, 213 UNTS 221, Article 3(2). 57 Idem.

Common Law in the United Kingdom and Ireland 229 penitent’s faith? Would a British court tell parliament that a new statute passed to allow just such interceptions was a breach of that individual’s Convention rights? But before the author considers how British courts and Strasbourg jurists might treat these cases, there is a completely different set of practical questions that can be posed which might lead to different answers than might be expected to flow from the hypothetical scenarios set out above. What if the Westminster parliament sought to pass a law that obliged all members of the clergy to disclose to the police or other secular authorities, all crimes that came to their attention in confession – treason, child abuse and traffic offences? Assuming such a law passed parliamentary scrutiny as the rape shield law was said to have done58 in R v A (No.2)59 would a British court interpret its way around that law if the police found out a priest had not complied? Would they make a declaration of incompatibility to parliament in some cases but not in others? And what would happen to that priest in the meantime, especially if the offence alleged and proved, carried a prison sentence? Would the priest have to wait in gaol like the priest in In re Keller60 who was sentenced for contempt? HRA Section 3 The House of Lords have taken some time to articulate a consistent approach to statutory interpretation under the HRA. Though that approach seems to have become more settled since their Lordships’ decision in Ghaidan v GodinMendoza61 in 2004 which is detailed infra, the judicial evolution of that now settled approach provides useful context which assists an understanding of what considerations would influence that court if it were called upon to consider the abrogation of religious confession privilege. Lord Steyn’s “radical”62 idea in 2002 that section 3 provided “considerable scope for the judicial amendment of legislation unless there is a conflict with an express intention from Parliament that the courts should refuse to construe the statute compatibly”63 did not originally find favour with his fellow judges in the House of Lords. In R v A (No. 2)64 he said In accordance with the will of Parliament as reflected in section 3 it will sometimes be necessary to adopt an interpretation which linguistically may appear

58

Harrington, op cit., pp. 279–282. R v A (No. 2) [2002] 1 AC 45. 60 In re Keller (1887) L.R. Ir. 158. The case was discussed supra in chapter four, pp. 109–111. 61 Ghaidan v Godin-Mendoza [2004] 2 AC 557. 62 Harrington, op cit., p. 281 citing Ekins, “A Critique of Radical Approaches to Rights Consistent Statutory Interpretation” [2003] 6 Eur. HRL Rev. 641. 63 Harrington, idem. 64 R v A (No. 2) [2002] 1 AC 45. 59

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This thought that the courts might have to stretch and find a completely new approach to statutory interpretation when Convention rights were implicated may have seemed a necessary consequence of the view that declarations of incompatibility under section 4 would be rare.66 But initially the other Law Lords did not want to go anywhere near an approach that might be criticised as contemporary judicial activism. Lord Woolf CJ said quite early after the passage of the HRA that he did not want to lay down any general principles67 and felt that “the practical experience of seeking to apply section 3 will provide the best guide.”68 Lord Hope’s more conservative statement in R v A (No. 2) that section 3 only provided “a rule of interpretation [and]…does not entitle the judges to act as legislators”69 was originally accepted as a better yardstick. In R v Lambert, after reiterating the fact that section 3 did not justify judicial legislation, Lord Hope further explained that section 3 would not even come into consideration “if the legislation contain[ed] provisions, either in the words or phrases which are under scrutiny or elsewhere, which expressly contradict the meaning which the enactment would have to be given to make it compatible.”70 And in In re S71 also in 2002, Lord Nicholls pointed out that when section 3(2)(b) said that section 3 did not “affect the validity, continuing operation or enforcement of any incompatible primary legislation” it confirmed that the courts would not be able to “[render] all provisions of primary legislation…compliant”72 with the Convention. And he was able to demonstrate what he meant by the further suggestion that “a meaning which departs substantially from a fundamental feature of an Act of Parliament [was] likely to have crossed the boundary between interpretation and amendment,”73 in subsequent cases. For example, in Bellinger v Bellinger74 in 2003, the House of Lords would not read “novel, extended meaning”75 of the “expressions ‘male’ and ‘female’ in[to] th[e Matrimonial Causes Act 1973]”76 but rather issued a declaration of incompatibility which has since seen the Westminster parliament 65

Ibid, para 44. See note 30 and supporting text. 67 Though note Harrington’s suggestion that his “guidance” in Poplar Housing and Regeneration Community Association Ltd v Donogue [2002] QB 48 from paragraphs 73–75 has been used in just this manner (op cit., pp. 278–280, 283). 68 Poplar Housing and Regeneration Community Association Ltd v Donogue [2002] QB 48, para 75. 69 R v A (No. 2) [2002] 1 AC 45, para 108. 70 R v Lambert [2002] 2 AC 545 at para 79. 71 In re S (Minors) (Care Order: Implementation of Care Plan) [2002] 2 AC 291. 72 In re S (Minors) (Care Order: Implementation of Care Plan) [2002] 2 AC 291, para 38. 73 Ibid, para 40. 74 Bellinger v Bellinger [2003] 2 AC 467. See brief discussion of the facts supra at note 31. 75 Ibid, para 36. 76 Idem. 66

Common Law in the United Kingdom and Ireland 231 review the legislation themselves. For Lord Nicholls that was at it should be since “a major change in the law, having far reaching ramifications”77 raising “issues whose solutions call for extensive inquiry and the widest public consultation and discussion”78 was a task for which the courts were “altogether unsuited”79 especially as in this case, “when the government, in unequivocal terms, has already announced its intensions to introduce comprehensive primary legislation on this difficult and sensitive subject.”80 But what about a case where a parliament aware of its new obligations to respect human rights protected under the Convention, thinks it has passed a law that is respectful of those rights but the courts do not agree? Can the courts still disagree without breaching the principle of parliamentary sovereignty, or must they simply accept the apparent parliamentary interpretation of the law despite the risk that an affected individual will then have a right of appeal to the European Court of Human Rights at Strasbourg? What is the correct parliamentary interpretation of the new law? In 2002, R v A (No. 2)81 was such a case. The Westminster parliament passed the Youth Justice and Criminal Evidence Act 1999 after the HRA was passed though before it took effect and considered “the Convention right to a fair trial, including the Convention jurisprudence on the need to treat witnesses with fairness”82 before passing the legislation. Joanna Harrington suggests that because Parliament had considered and balanced these competing interests in criminal evidence procedure, the House of Lords was wrong to interpret the new act in a way which undid what she regarded as the clear parliamentary intent.83 But with respect, and as she later quoted Lord Hoffman [t]he principles upon which decision-making powers are allocated are principles of law…when a court decides that a decision is within the proper competence of the legislature or executive, it is not showing deference. It is deciding the law.84

Parliament does not always get the law right the first time it legislates in a new area. The members can misunderstand and certainly cannot contemplate every set of facts to which a new law may apply. The need to choose between available but sometimes competing and even ambiguous interpretive possibilities is the essence of judicial method. What sections 3 and 4 of the HRA dictate is the need to treat Convention rights as a foundational element in British judicial interpretive process post 1998. Thus when the House of Lords 77

Ibid, para 37. Idem. 79 Ibid, para 38. 80 Idem. 81 R v A (No. 2) [2002] 1 AC 45. 82 Harrington, op cit., p. 281. 83 Harrington, op cit., p. 281. 84 ProLife Alliance v British Broadcasting Corporation [2003] UKHL 23, at para 75 as quoted by Harrington, op cit., pp. 291–292. 78

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reviewed the available evidence of what parliament meant to accomplish when they passed the rape-shield laws at issue in R v A (No. 2), the Law Lords concluded that Parliament had still not properly weighed or perhaps even understood, the foundational Convention requirement that a person accused of crime have a fair trial including the right to test all the witnesses and all the evidence presented as proof of guilt. Writing in 2004 but before the House of Lords decided the now leading case of Ghaidan v Godin-Mendoza,85 Harrington was concerned that since Parliament had purported to conduct the same balancing exercise and had decided that foreclosing the right to cross-examine a complainant about her prior sexual history did not unduly prejudice an accused person’s right to a fair trial, the courts did not have the right to review the same legislation and come to a different conclusion. For the courts to decide that the words Parliament used to express their intent did not achieve their objective, meant the courts were interfering with parliamentary sovereignty. Harrington believed that Parliament got it right since the European Court is “disinclin[ed] to interfere with domestic rules of evidence”.86 But the House of Lords in R v A (No. 2), effectively came to the same conclusion as the Australian High Court did in Daniels v ACCC87 when that court found that legal professional privilege, an essential element of an accused person’s right to a fair trial, was not appropriately characterised as a mere “rule of evidence”.88 Legal professional privilege was a non-negotiable part of the foundational human right to a fair trial.89 In R v A (No. 2), an accused person’s right to cross-examine those who testified against him was similarly a non-negotiable part of the foundational human right to a fair trial.90 If it can be argued that religious confession privilege is a foundational element of any meaningful right to freedom of belief – whether confession is a manifestation of religion or not - then similar logic could be used to declare a statute abrogating religious confession privilege inconsistent with the Convention. The House of Lords considered that the Westminster Parliament had not understood that they could not abrogate any part of a Convention 85

Ghaidan v Godin-Mendoza [2004] 2 AC 557. Harrington, op cit., p. 281. 87 Daniels Corporation v ACCC (2002) 192 ALR 561; [2002] HCA 49; (2003) 77 ALJR 40. 88 In Daniels, the Australian High Court found that legal professional privilege was an essential part of the right to a fair trial and was not simply “a rule of evidence”. Legal professional privilege was more appropriately understood as a “fundamental common law immunity which embodies a substantive and legal human right” (Daniels Corporation v ACCC (2002) 192 ALR 561, 564 (para 10 per Gleeson CJ, Gaudron, Gummow and Hayne JJ); 573–574 (para 44 per McHugh J) and 583 (para 85 per Kirby J). See also detailed discussion supra pp. 191–274. 89 Daniels Corporation v ACCC (2002) 192 ALR 561, pp. 573–574, para 44, per McHugh J; p 583–584, para 85–86, per Kirby J. See also discussion supra pp. 191–195. 90 Note too that the New South Wales Court of Appeal had arguably undone a rape-shield statute to protect an accused person’s right to a fair trial by an analogous process of interpretation (R v Young (1999) 46 NSWLR 681, 722, para 220 (per Abadee and Barr JJ). See also discussion supra pp. 187–191). 86

Common Law in the United Kingdom and Ireland 233 right to a fair trial however much they wanted to pass a rape-shield law. It is thus not surprising that in R v A (No.2), in accordance with section 3 of the HRA, the House of Lords found an acceptable reading of the Youth Justice and Criminal Evidence Act 1999 which did not require that the accused in that case be deprived of his foundational right to cross-examine the accused as to her prior sexual history. Since an acceptable interpretation which protected the right to a fair trial confirmed under the Convention was available, there was no need for a section 4 declaration of incompatibility. In the leading case of Ghaidan v Godin-Mendoza91 however, the House of Lords manifested a growing confidence with the purpose and meaning of section 3 of the HRA that they have followed ever since. Though they certainly had no right to legislate, section 3 of the HRA had provided the courts with a completely new and far reaching interpretive power. Lord Nicholls stated It is now generally accepted that the application of section 3 does not depend upon the presence of ambiguity in the legislation being interpreted. Even if, according to the ordinary principles of interpretation, the meaning of the legislation admits of no doubt, section 3 may nonetheless require the legislation to be given a different meaning…the interpretative obligation decreed by section 3 is of an unusual and far-reaching character. Section 3 may require a court to depart from the unambiguous meaning the legislation would otherwise bear. In the ordinary course the interpretation of legislation involves seeking the intention reasonably to be attributed to Parliament in using the language in question. Section 3 may require the court to depart from this legislative intention, that is, depart from the intention of the Parliament which enacted the legislation. The question of difficulty is how far, and in what circumstances, section 3 requires a court to depart from the intention of the enacting Parliament. The answer to this question depends upon the intention reasonably to be attributed to the Parliament in enacting section 3… But once it is accepted that section 3 may require legislation to bear a meaning which departs from the unambiguous meaning the legislation would otherwise bear, it becomes impossible to suppose Parliament intended that the operation of section 3 should depend critically upon the particular form of words adopted…That would make the application of section 3 something of a semantic lottery…From this the conclusion which seems inescapable is that the mere fact the language under consideration is inconsistent with a Convention-compliant meaning, does not of itself make a Conventioncompliant interpretation under section 3 impossible…It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant…[but] the meaning imported by the application of section 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must, in the phrase of my noble and learned friend Lord Rodger of Earlsferry, ‘go with the grain of the legislation’.92

Lord Rodger noted that in cases considering the operation of section 3 before the Ghaidan case, the House of Lords “ha[d] taken tentative steps towards 91 92

Ghaidan v Godin-Mendoza [2004] 2 AC 557. Ibid, paras 29–33.

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identifying th[e]…limits”93 of that operation. But in the Ghaidan case they had found that the words “so far as it may be possible” from section 3, licensed the courts to take a much more far reaching approach than was afforded in the traditional process of statutory interpretation so as to avoid “the need for any further intervention by Parliament”.94 The courts however had to avoid the “judicial vandalism” which Lord Bingham had described in R (Anderson) v Secretary of State for the Home Department95 in 2003. Judicial interpretation rather than ‘judicial vandalism’ required that “the ‘pith and substance’ of the measure that Parliament had enacted”96 be respected and followed. “[D]eparture from a fundamental feature of an Act of Parliament may be more readily treated as crossing into the realm of amendment”,97 but “[i]f the court implies words that are consistent with the scheme of the legislation but necessary to make it compatible with Convention rights, it is simply performing the duty which Parliament has imposed on it”.98 The key to what it is possible for the courts to imply into legislation without crossing the border from interpretation to amendment does not lie in the number of words that have to be read in. The key lies in a careful consideration of the essential principles and scope of the legislation being interpreted…What matters is not so much the particular phraseology chosen by the draftsmen as the substance of the measure which Parliament has enacted in those words.99

All of this enabled a clear majority in the House of Lords100 to decide that the provision in the Rent Act 1977 entitling only a “surviving spouse…of the original tenant” to become a statutory tenant in place of the deceased,101 could be interpreted to include a same-sex partner of the deceased even though the Law Lords themselves had denied that right in a similar case requiring an interpretation of the same statute,102 with facts commencing before the advent of the HRA in 1998. 93

Ibid, para 104. Ibid, para 106. For both Lord Nicholls (para 29) and Lord Rodger (para 106) the House of Lord’s decision in R v A (No. 2) [2002] 1 AC 45 was the watershed case from which this new understanding had flown. 95 R (Anderson) v Secretary of State for the Home Department [2003] 1 AC 837, 883C-D, para 30. 96 Ghaidan v Godin-Mendoza [2004] 2 AC 557, para 111. 97 Ibid, para 115. 98 Ibid, para 121. 99 Ibid, paras 122–123. 100 Only Lord Millet dissented. He believed that the courts would be “usurping the function of Parliament” to interpret “an existing statute framed in gender specific terms, and enacted at a time when homosexual relationships were not recognised by law,…[so as] to treat persons of the same sex living together as if they were living together as husband and wife and then to treat such persons as if they were lawfully married” (ibid, para 99). 101 Rent Act 1977 (UK), section 2 (1). 102 Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27. The reason why the samesex partner failed in the Fitzpatrick case even though it was decided after the advent of the HRA was because the original tenant in that case had died in 1994, four years before the HRA was passed. 94

Common Law in the United Kingdom and Ireland 235 If British courts have been prepared to accept that the right to a fair trial includes the right to cross-examine one’s accusers even when Parliament seems to have wished to stop that cross-examination, would British courts find that any interference with the confidentiality of religious confession was similarly the abrogation of an intrinsic part of an individual’s freedom to believe and practice religion? What if the UK Parliament passed legislation compelling members of the clergy to report child abuse to the police, even if they only learned of such facts in a traditional religious confession? Is there anything in the jurisprudence of the European Court of Human Rights which suggests how they would respond in such a case? Strasbourg Jurisprudence After discussing treatment of Article 9(2)’s limitations on “Manifestation of Religion or Belief ”,103 Carolyn Evans concludes: At all stages of the process of determining whether a restriction on religion or belief is justified under Article 9(2) of the Convention…the Court and Commission have shown great deference to the claims of States….This deference to State authority only tends to break down in cases where the State and its laws have deliberately targeted traditional religious behaviour, such as the establishment of places of worship or proselytism…[but] this still leaves unprotected a large group of applicants whose religion or belief is not restricted by specific legislation on religion but by general and neutral laws.104

Paul Taylor says that while there is no established hierarchy distinguishing the variety of recognised forms of manifestation, there is no doubt that some (such as worship) are given greater importance than others (the wearing of religious headdress)….[and some] forms of manifestation appear to be given little protection at all by the European organs even though clearly acknowledged at United Nations level.105

Both writers are pessimistic about the general level of protection afforded practical freedom of religion in European Court of Human Rights jurisprudence. But to understand that sense of pessimism and how religious confessional confidentiality might fare before the Court – and thus how the consequential jurisprudence might influence English courts, it is necessary to review the tests which the Convention language establishes and how the European Court has used those tests to weigh what is appropriate protection for religious freedom and practice. Article 9(1) again states: Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in 103 104 105

Evans, op cit., Chapter 7, pp. 133–167. Ibid, p. 167. Taylor, op cit, p. 203.

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Chapter Eight community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

Since religious confessional confidentiality does not involve an individual’s right or wish to change religions, it is unlikely that the European Court will ever find it necessary to consider confidential religious communications against this test. Similarly, while individuals may confess their sins in private prayer or in some other form of meditation, it is only religious confessions which engage a community of two or possibly more, that are likely to come before the European Court for consideration. Does the possibility that a confession made to a religious disciplinary tribunal rather than to a single priest, amount to a public confession and would the Court consider that such arguable publicity negated any argument for confidentiality that may be conceded for a one-on-one confidence? And then there is the question of whether religious confession is an act of worship, teaching, practice or observance. Does it make any difference which category of manifestation of religion that religious confession is deemed to fall into? It is submitted that although religious confession practically involves a community of at least two, it does not really engage the community language in the Article since that language was facially drafted to enable the creation of religious associations which would have the corporate personality necessary to acquire land and construct places for communal worship. And though it is conceivable, it is difficult to imagine that any European state let alone a country in the United Kingdom in the twenty-first century would pass a law purporting to recognise only the confidentiality of confessions made in approved church buildings or to clergy approved by the State. Certainly some religious orders do set apart sacred space for sacramental confession, but even the most structured canon law recognises the enduring need for confessional confidentiality even in the case of informal confessional communications.106 However, where a religious faith has a confessional practice which involves more than one receiver of a confession, the party seeking to protect the confession would likely have to satisfy the European Court not only that the confession remained confidential despite the multiple parties involved, but also that the hearing of the confession by a disciplinary council of some kind was an established part of the religious practice of that religious community. Otherwise it seems likely the European Court could dismiss the plea for privilege as having been waived by apparent publicity. While it is conceivable that a State in the UK might pass a law validating the privilege of only those confessions made to persons established as clergy in their church – since there have been many religious 106 Note that some of the confessional material for which Father Henry Garnet sought privilege, was confessional material that was discussed between priest as they were walking (Garnet’s case (1606) 2 Howells State Trials 217, 231 where Sir Edward Coke is critical of “an ambulatory confession” since “the discourse would take long to repeat kneeling”).

Common Law in the United Kingdom and Ireland 237 confession privilege statutes that require the recipient of a confidential religious communication to be a member of the clergy in that church – the dearth of cases that have denied privilege in such jurisdictions, suggests either privilege is not claimed when the authority of the would-be cleric is dubious, or that courts are not inclined to look behind the religious assertion of clerical authority. In any event, when modern states draft religious confession privilege statutes, they are generally at pains to make them ecumenical in nature. This is the more likely in the UK where legislation is scrutinised for its egalitarianism both before and after it is passed into law. Is religious confession an act of worship, teaching, practice or observance? It is submitted that it is all of these. Certainly it is an act of worship, since the perceived need to confess one’s personal failings is a most primal acknowledgement of a deity to whom the confessor is subservient. And while it might be argued that some confessions are made simply to assuage the conscience, it seems doubtful that the European Court would deny that the choice of a member of the clergy as the avenue of assistance proved the addition of an intention to worship rather than a need for simple psychotherapy. It further seems likely that the Court would accept that some element of instruction, and therefore teaching, might be expected as a usual aspect of most confessional communications. For while the term ‘confession’ itself draws attention to the penitent’s admission of moral guilt, the approach to a priest anticipates both counsel and instruction, as well as absolution in response. And it is submitted that there is no need to demonstrate that religious confession is both a religious practice and a religious observance. While some faiths do not insist on regular confession, those which follow the practice in any way, demonstrate by the presence of such practice in their ritual, that it is a part of their religious observance – res ipsa loquitur. Hence, in the case of the practice of religious confession, it probably does not matter whether there is a hierarchy in Article 9(1)’s list of manifestations of religion that will pass muster for protection with the European Court,107 or whether the list of approved manifestations in Article 9(1) is exclusive or inclusive.108 Religious confession privilege is almost certain to be acknowledged and protected under Article 9(1). The practical question is whether Article 9(2)’s permissible limitations upon manifestations otherwise protected under Article 9(1), will lead to the abrogation of the confidentiality of particular religious confessions. The qualifications set out in Article 9(2) are: such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

107 108

Taylor, op cit, p. 203. Evans, op cit, pp. 105–107.

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What limitations could be “prescribed” or imposed upon religious confession “by law”? How might such limitations be “necessary in a democratic society”? And how would the coercion of religious confidences protect the “public order, health or morals, or…the rights and freedoms of others”? Certainly European States could pass laws that proscribed all religious confession, but that thought seems inconceivable in the United Kingdom. It is more likely that the United Kingdom would pass laws, as have a number of US States, requiring members of the clergy to report reasonable suspicion of child abuse to secular authorities and expressly abrogating any claim of common law privilege for such religious communications as a defence against doing so. Does existing European jurisprudence from Convention cases suggest how an English court should respond to a religious minister’s defensive argument that such a law was inconsistent with his freedom of thought, conscience and religion under Article 9? Such a law would engage all the tests that arise under Article 9(2). For it hypothesizes a law passed to protect the health and safety of vulnerable children in circumstances of perceived social necessity. What do European Court decisions in Article 9 cases have to say that might be predictive of the UK judicial response to claims that religious confession privilege should trump society’s interest in protecting vulnerable children in UK society? The Arrowsmith Test In its decision in Arrowsmith v United Kingdom109 in 1978, the European Commission set out what has been called a ‘necessity’ test110 for determining whether manifestations of religious belief are protected under the language of Article 9(2). Paul Taylor notes the decision has been followed in subsequent decisions.111 He says the jurisprudence in the case “developed a means of confining the …manifestations”112 which were eligible for protection under Article 9. Arrowsmith was a “seasoned pacifist who had been convicted under the Incitement to Disaffection Act 1934 for circulating leaflets at an army base.”113 In defence, the United Kingdom argued that the only manifestations of religion or belief that were protected under Article 9(2) were those encompassed by the words “teaching, practice, worship and observance” in Article 9(1). Arrowsmith countered that the list in Article 9(1) was not intended to be “exclusive”114 and in any event, that her actions were a part of her religious belief. 109 110 111 112 113 114

Arrowsmith v the United Kingdom, App. No. 7050/75 (1978) 19 D&R 5. Evans, op cit, p. 115. Taylor, op cit, p. 210. Idem. Ibid, p. 123. Evans, op cit., p. 106.

Common Law in the United Kingdom and Ireland 239 The European Commission decided that ‘the term “practice” does not cover each act which is motivated or influenced by a religion or belief ”.115 Arrowsmith’s actions did not constitute a practice within the meaning of Article 9 because they did not actually “express the belief concerned….even though they [were] motivated or influenced by it”.116 What then of a hypothetical Anglican priest’s claim that coercion of a religious confession received as part of a religious ritual would breach Article 9 right to freedom of thought, conscience and religion? Is the receipt of such a confession a necessary part of the established Anglican religion, or is such a confession like Arrowsmith’s practice of distributing leaflets – something that was merely motivated by her religious belief but not necessary or essential to it? Would it change the result if the clergy of other churches were willing to testify that they too found it offensive that any member of the clergy should be coerced to reveal a religious confidence? What if an amicus brief filed by a rationalist organisation alleged that the concession of a religious confession privilege amounted to a religious preference which was inconsistent with the egalitarian spirit of Article 9? Each and every religious confession is different. For example, adherents of the Roman Catholic faith are expected to regularly shrive themselves before a priest as a necessary and elemental part of their religious faith and practice. But the Victorious Christian Fellowship in Montreal Canada, did not require that Adele Gruenke confess her sin; the leaders of that group merely recommended and allowed her to confess. Her claim of privilege for her communications to her pastors was almost an afterthought and the Supreme Court of Canada found that she had no expectation of confidentiality at the time she made her confession. Would the European Court follow the practice of the Supreme Court of Canada and treat each confession separately on a case-bycase basis, or would the court find as L’Heureux-Dubé J recommended, that all religious confessions should be treated in a consistent manner to avoid chilling the value of spiritual relationships in European society? There have been no reported European or English cases since the HRA was passed in 1998 which raise any of these issues directly to guide future judicial practice in England where the confidentiality of religious confessions and other similar communications are concerned. But it seems likely that a court in either jurisdiction would find the need to protect religious confessions as a core manifestation of belief more compelling than a conscience driven wish to distribute pacifist leaflets at a military base. Have there been any other cases involving the manifestation of core religious beliefs which can provide more guidance than the Arrowsmith case? 115

Arrowsmith v the United Kingdom, App. No. 7050/75 (1978) 19 D&R 5, pp. 19–20, para.

71. 116

Ibid., p. 20, para. 71.

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In 1986 a Jehovah’s Witness couple named Kokkinakis persuaded the wife of a Cantor of the Greek Orthodox Church to invite them to her home for a religious discussion.117 The Cantor immediately contacted the police who arrested the couple on charges of proselytism which was an offence under Greek law. While the couple’s conviction in the Greek courts was overturned by the European Court of Human Rights, that majority decision did not send a clear message that religious teaching designed to persuade others to change their religion would always be protected under the European Convention. The Greek anti-proselytism law had been passed to try and ensure that religious conversion was a free and informed decision rather than a consequence of fraud or deception. The majority considered that the Cantor’s wife was an intelligent woman and did not need protection but other less educated and more impressionable persons might need to be protected in the future. Thus this particular infringement of the Article 9(1) right to freedom of religion was not justified under Article 9(2) in Greek society in the late 1980s. While Judge Martens found that Article 9 did not allow States in the Council of Europe to make it a criminal offence to induce a change of religion by proselytism, his was a lonely voice of principle given that other judges on the court stated that such laws could be justified if they protected the religious beliefs of those who did not wish to be proselyted. While Judge Martens’ opinion can be used to argue that religious confession privilege should survive contrary state laws, the judgments of other judges who agreed with Judge Martens in the result in the Kokkinakis case, suggest that in cases where a greater state interest in the relevant regulation could be demonstrated, a religious confession privilege could be abrogated. The court’s willingness to weigh the competing interests of society in religious freedom against various forms of state security using proportionality criteria, is reminiscent of the case-by-case approach of the Supreme Court of Canada reaffirmed in the Gruenke case. Analogy from Head Scarf Cases? Leyla Sahin’s wish to wear her head scarf when attending the faculty of medicine of the University of Istanbul, is arguably an example of the manifestation of a core belief of Muslim women.118 A Chamber composed of seven judges119 accepted that Miss Sahin’s decision to wear a scarf was inspired by her religious belief and accordingly, the regulations restricting where and when she wore 117 Kokkinakis v Greece (application no. 14307/88), judgment delivered May 25, 1993 [1993] ECHR 20. 118 Leyla Sahin v Turkey (application no. 44774/98), judgment of Grand Chamber delivered November 10, 2005. 119 This finding in paragraph 71 of the Chamber Judgment was endorsed by the Grand Chamber in paragraph 78 of its judgment.

Common Law in the United Kingdom and Ireland 241 her scarf “constituted an interference with her right to manifest her religion”120 under Article 9(1) of the Convention. But the Grand Chamber endorsed the finding of the section Chamber and found that “the regulations on the Islamic headscarf were not directed against the applicant’s religious affiliation, but pursued among other things, the legitimate aims of protecting order and the rights and freedoms of others”.121 The margin of appreciation afforded to member states of the Council of Europe confirmed that the measure was “necessary in a democratic society”122 because the ban and the procedures implementing it were proportional to the justifiable objectives of protecting secularism and pluralism in Turkish society. The decision has effectively been followed in at least two English cases – R (on the application of Begum) v Head Teacher and Governors of Denbigh High School123 and R (on the application of X (by her father and litigation friend) ) v Head Teacher and Governors of Y School,124 and in both cases, like the European Court in Leyla Sahin, the English courts found that even if the student’s right to manifest her Islamic beliefs by wearing prohibited clothing had been infringed, the interference was justified under Article 9(2).125 Nor has the European Court shown any sign of reviewing its stance in head scarf cases since two similar appeals by French students were recently refused.126 What lessons if any can be drawn from this line of cases to a case concerning religious confession privilege? Since nearly every religious confession privilege case will involve a different religion with different confessional practices and since the facts of the cases will also differ, it is very difficult to generalise at all from the Islamic clothing cases. But if a case involved a statute abrogating religious confession privilege in cases of child abuse, it is difficult to imagine that a religious confession privilege claim would be upheld. For even in a case about a strong traditional religious confession, the passage of a statute abrogating confidentiality in the interests of the protection of children would likely convince any UK court that the abrogation was justified. 120

Idem. Ibid para 165, see also paras 99 and 158. 122 Article 9(2), ECHR. 123 R (on the application of Begum) v Head Teacher and Governors of Denbigh High School [2006] 2 All ER 487. 124 R (on the application of X (by her father and litigation friend) ) v Head Teacher and Governors of Y School [2007] EWHC 298. 125 R (on the application of Begum) v Head Teacher and Governors of Denbigh High School [2006] 2 All ER 487. Lord Bingham (para 25), Lord Hoffman (para 50) and Lord Scott (para 72) all stated that they did not consider Miss Begum’s freedom to manifest her religion had been interfered with at all. Lord Nicholls (para 41) and Baroness Hale (paras 92 and 94) were not so sure of that but held none the less that even if Miss Begum’s freedom to manifest her religion had been interfered with, that interference was justified under Article 9(2). The High Court Judge in R (on the application of X (by her father and litigation friend) ) v Head Teacher and Governors of Y School followed the approach of Lord’s Bingham, Hoffman and Scott. 126 Dogru v France, Application No. 27058/05, Judgment December 4, 2008 and Kervanci v France, Application No. 31645/04, Judgment December 4, 2008. 121

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Can the Absence of Legal Rules Justify the Abrogation of Freedom of Religion? However, if there were no statute expressly abrogating religious confession privilege and the prosecution could only claim that the public interest justified the intrusion into the priest-penitent relationship, it seems there is a chance that the privilege claim might survive. That is because there have been some European Court decisions which have held that state action that interfered with the manifestation of religious belief without any legal rule authorising them to do so, did not constitute action prescribed by law and was therefore unlawful. For example, in Kuznetsov and others v Russia, the European Court found that there was no legal basis for breaking up a religious event in premises rented for that express purpose. That interference with freedom of religious practice constituted a simple violation of Article 9 and the domestic courts that had heard the matter had not heard it in a fair and equitable manner.127 Similarly in Perry v Latvia,128 the Nationality and Migration Directorate’s refusal to renew an evangelical pastor’s temporary residence permit was an interference with his Article 9 rights since there was no provision of Latvian law in force at the time which either stipulated such action or set out grounds which could justify the decision. But the decision in Ivanova v Bulgaria129 may signal the most hope for a common law religious confession privilege claim absent a statute abrogating same. For in that case, the European Court found that even though the applicant’s employment in a non-academic role at a state school had been terminated in accordance with the applicable labour law, the decision was not justified since she had clearly been dismissed because of her religious beliefs and her affiliation with a Christian evangelical group. It did not matter that the law which had been followed was not specifically targeted at abrogating some religious practice in the interests of public health and safety. It could therefore be argued that a prosecutor’s attempt to call a priest who had heard a religious confession to give evidence in a criminal case should fail in the absence of statutory abrogation of religious confession privilege because there was no provision in law in the United Kingdom that justified this interference with a core manifestation of religious belief. Against that however is the point that any compulsion to provide evidence before a court, is a compulsion mandated by law – and neutral and generally applicable law at that. Perhaps the most that can be extracted from this discussion, is that the Ivanova decision provides an argument that a core manifestation of religious belief such as the freedom to make a confidential confession has the potential to trump a generally applicable law to give evidence.

127 128 129

Kusnetsov and others v Russia, Application No. 184/02, Judgment January 11, 2007. Perry v Latvia, Application No. 30273/03, Judgment November 8, 2007. Ivanova v Bulgaria, Application No. 52435/99, Judgment April 12, 2007

Common Law in the United Kingdom and Ireland 243 But there is a legitimate concern that the European Court might not even engage in such analysis if the facts invoked the limitations set out in Article 9(2) – namely that a valid law existed and had been passed “in the interest of public safety,…the protection of public order, health or morals, or…the protection of the rights and freedoms of others”. Carolyn Evans has lamented that in some cases the European Court has not even involved itself in significant legal analysis. Even in cases where the Court and Commission have recognised a breach of freedom of thought, conscience and religion under Article 9(1), they have done so “in a single sentence”.130 For example, Carolyn Evans has noted that in Chappel v the United Kingdom,131 the Commission decided it was not necessary to decide whether Druidism was a religion at all under Article 9(1) because the government was justified in limiting access to Stonehenge in any event. The Druids were thus left without knowing whether they had any protected rights at all, and the British Government received no guidance as to what future action would offend Article 9.132 Similarly a finding that laws requiring the wearing of a motorcycle helmet were “necessary for the protection of health in accordance with Article 9(2)”133 even though those laws effectively forced a Sikh to remove his turban, provided no guidance as to when, if ever, a religious practice would be deemed sufficiently important to require a legislative exception.134 The same result in a much more recent French motorcycle helmet case decided in 2008,135 seems to authenticate Carolyn Evans’ concern that few religious practices will ever trump even state administrative convenience.136 Indeed, she points out, “[t]here is a danger that, in the Article 9 context, public safety and order may become equated with mere administrative convenience”.137 130

Evans, op cit., p. 135. App. No. 12587/86, 53 Eur. Comm’n H.R. Dec. & Rep. 241 (1987) cited by Evans, op cit., p 134. 132 Evans, op cit., p. 135. Note that Paul Taylor thinks that since the closure of Stonehenge at issue in the case did not close other sites to summer solstice celebrations, this decision may be best understood as a case where the European Commission was sensitive to “sites of unique ceremonial importance” as the United Nations Human Rights Committee was later the case in Francis Hopu and Tepoaitu Bessert v France, Communication No. 549/1993 (views of 29 July 1997), UN Doc. A/52/40 vol. 2 (1999), p. 70. 133 Idem. 134 Ibid p. 135 citing X v the United Kingdom, App. No. 7992/77, 14 Eur. Comm’m H.R. Dec. & Rep. 234 (1978). 135 Mann Singh v France, Application No. 24479/07, Decision November 13, 2008 (http:// www.bailii.org/eu/cases/ECHR/2008/1523.html). 136 Op cit., p. 154 citing the Study of Discrimination in the Matter of Religious Rights and Practices by Arcot Krishnaswami, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, E/CN.4/Sub.2/200/Rev.1 (1960), p. 23 where he warned that “while the maintenance of social cohesion may be a legitimate aspiration, it has only too often been invoked by States and by predominant groups within States to justify tyranny and persecution”. 137 Op cit., p. 154 citing the Study of Discrimination in the Matter of Religious Rights and Practices by Arcot Krishnaswami, Special Rapporteur of the Sub-Commission on Prevention 131

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Some analysis would enable “applicants and States”138 to better understand the metes and bounds of their rights; would confirm the value of freedom of thought, conscience and religion generally and would undo the currently reasonable conclusion that the Commission and Court “pay undue attention to the arguments of…government[s]”139 without due regard to “the importance to the individual of the manifestation of religion”.140 Though the final draft of Article 9(2) was drafted more narrowly than the other Convention articles, “[t]he Court and Commission…have [dealt] with [it] in a roughly similar way to the other limitations clauses…[so that] there seems to be little difference in practice between the way in which Article 9(2) restricts State action and the way in which the less stringent Article 10(2) does.”141 The boundaries between the different types of justifications for the restriction of rights have become blurred and “undermine…the principle set out by the Court that exemptions to a Convention right must be narrowly construed”.142 Guidance from Other Commentary Ian Leigh’s commentary soon after the Human Rights Act was passed in the UK implicitly suggested we should be pessimistic about the prospects for greater protection of religious confession privilege under the Convention than under the pre-existing common law. He wrote that the English courts appeared “reluctant to take up the challenge”143 to give “UK laws…a more rights-friendly reading at the domestic level”.144 He explained that UK judges “have been content to refer to restrictive Strasbourg precedents and have used the outcome to show that the HRA makes no difference” (italics original).145 Some judges even discourage “the citation of Convention jurisprudence” because in all material respects the Convention did no more than set out the common law in writing.146 He also deplored the “questionable approach…[of] treating the of Discrimination and Protection of Minorities, E/CN.4/Sub.2/200/Rev.1 (1960), p. 23 where he warned that “while the maintenance of social cohesion may be a legitimate aspiration, it has only too often been invoked by States and by predominant groups within States to justify tyranny and persecution”. 138 Ibid, p. 136. 139 Idem. 140 Idem. 141 Ibid, p. 137. 142 Idem, citing Klass v Germany, 28 Eur. Ct. H.R. (ser. A) at 21 (1978); Sunday Times v the United Kingdom, 30 Eur. Ct. H.R. (ser. A) (1979). 143 Leigh, op cit., p. 329. 144 Idem. 145 Idem. 146 Idem. Leigh says that “the House of Lords declared itself satisfied that the common law [on freedom of expression] was identical to Article 10 of the Convention” in Attorney-General v Guardian Newspaper (No. 2)[1990] 1 AC 109, 284–285 per Lord Goff; Derbyshire CC v Times Newspapers Ltd [1993] AC 534, 550–551 per Lord Keith of Kinkel; and R v Secretary of State

Common Law in the United Kingdom and Ireland 245 previous pronouncements of UK courts as binding where they have considered Convention case law, even where it is arguable that the earlier courts have misunderstood it”.147 He was a little reassured by “unconvincing attempts to distinguish [Strasbourg precedents because]…they indicate just how quickly most judges appear to have adjusted to the influx of a substantial new source of law into the legal system.”148 But writing later with Rex Ahdar in 2005,149 he found that the English Court of Appeal’s rejection of an Article 9 defence “to a charge of possession with intent to supply of a class B drug by a Rastafarian… stopped entering a Rastafarian temple”150 where the cannabis concerned was intended for “private devotional use”,151 was “plainly unsatisfactory”.152 When compared with the South African Constitutional Court’s “rigorous analysis of the government’s claim that an exemption for the religious use of cannabis was not feasible”153 in an “identical”154 case, the acceptance of the government’s assertion that “the Misuse of Drugs Act 1971 constituted a legitimate restriction [necessary in a democratic society] under Article 9(2)”155 when refusing leave to appeal in R v Taylor (Paul),156 was superficial157 and seems to imply that majoritarian laws will always trump minority religious rights. This of course, confirms Carolyn Evans’ observation that “the Court and Commission have shown great deference to the claims of States”.158 But her note that “deference to the claims of States…break[s] down in cases where the State and its laws have deliberately targeted traditional religious behaviour, such as the establishment of places of worship or proselytism”,159 suggests that religious confession privilege cases which do involve a very traditional religious behaviour, might receive more favourable treatment – especially if religious confession privilege were expressly abrogated by statute. for the Home Department, ex parte Simms [2000] AC 115, 123–124 per Lord Steyn. See also note 17 where Joanna Harrington quotes Sir Ivor Jennings 1958 view that though Britain then had “no Bill of Rights…we do the job [of protecting civil liberties] better than any country which has a Bill of Rights or Declaration of the Rights of Man”. 147 Leigh, op cit., p. 330. 148 Ibid, p. 331. 149 Ahdar R., and Leigh I., Religious Freedom in the Liberal State, Oxford University Press, 2005. 150 Ibid, pp. 172–173. 151 Ibid, p. 172. 152 Ibid, p. 173. 153 Ibid, p. 171, 154 Ibid, p. 172. 155 Ibid, p. 173. 156 [2001] EWCA Crim 2236; [2002] 1 Cr App R 37. Ahdar and Leigh note this decision “was cited and followed by the New Zealand Court of Appeal in R v Anderson, CA 27/04, 23 June 2004”. 157 Paul Taylor has also suggested that the European Court’s analysis is regularly “superficial” when it “accept[s] rather than challenge[s] the aim[s] claimed by the State” for laws under question (op cit., p. 302). 158 See note 104 and supporting text. 159 Idem.

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Though Carolyn Evans observation in 2001 that “no Article 9 case has [yet] succeeded because a restriction on freedom of religion or belief was not prescribed by law”160 has been surpassed by at least the decisions in Kuznetsov, Perry and Ivanova discussed above,161 one senses that these exceptions almost demonstrate her concern since they were egregious cases where officials had been motivated by transparent anti-religious animus. But she noted even in 2001 that States did not have “indefinite leeway”162 to determine whether a particular law is ‘necessary in a democratic society’. “[T]he adjective ‘necessary’…is not synonymous with ‘indispensable’, neither has it the flexibility of such expressions as ‘admissible’, ‘ordinary’, ‘useful’, ‘reasonable’ or ‘desirable’ ”.163 Whether a limitation of manifestation of religion is really necessary will depend on the level of consensus on the issue among Contracting States, the extent to which the matter interferes with the core of an applicant’s private life, the importance of the right to a democratic and pluralistic society, and the circumstance and background of a particular case.164

While it seems that manifestations of religion are protected in practice by the European Court, if, as in the United States,165 the law in question set out to target the particular religious practice,166 it is submitted that since other professionals under ethical obligations of confidentiality are already obliged to report child abuse, the European Court could make short work of a religious confession privilege claim in such a case unless religious confession privilege were singled out for express and specific mention. This despite the fact that such coercion would see a Roman Catholic priest jailed for contempt of court for non-disclosure or deposed from ministry in the church because of his breach of the seal of confession. But it seems unlikely that the United Kingdom legislature would pass a law specifically abrogating religious confession privilege in the first place. For maintaining the status quo where there are no statutory laws relating to religious confession privilege avoids a clash with the 160

Evans, op cit., p. 139. Supra, pp. 27–28. 162 Ibid, p. 143. 163 Ibid, p. 142 citing Handyside v the United Kingdom, 24 Eur. Ct. H.R. (ser A) at 22 (1976). 164 Ibid, p. 143. 165 For example, despite their decision in Employment Division v. Smith, 494 U.S. 872 (1990) that a “neutral law of general applicability” did not offend the right to freedom of religion protected under the First Amendment when it made sacramental use of the drug peyote illegal, in Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), the United States Supreme Court found that an ordinance passed by the City of Hialeah, Florida, was unconstitutional because it was targeted specifically against the practice of ‘santeria’ by this church. 166 Evans says that even though “the Court has been reluctant to hold that any Greek laws are in breach of Article 9,…it has been prepared to find that the actions of Greece in prosecuting particular individuals under those laws were not necessary in a democratic society” (op cit., p 145). She also notes “that the Commission and Court have been reluctant to hold that the application of a general and neutral law to a person can breach freedom of religion” (op cit., p 156). 161

Common Law in the United Kingdom and Ireland 247 clergy of many denominations including those of its own established church who would similarly be penalised for breach of confessional confidence under current Anglican canon law. What of sub poenas to give evidence about the contents of confidential religious communications in other cases? For example, what if an Anglican priest were sub poenaed to give evidence of a confession he was alleged to have received in connection with the crime of murder? How would the European Court of Human Rights respond to the claim that such coercion interfered with a religious minister’s Article 9 rights – and how would an English court accommodate the likely Strasbourg jurisprudence in a later similar case? Carolyn Evans’ analysis of the European jurisprudence observes a consistent superficial analysis of Article 9 claims. While the Commission and Court are prepared to scrutinize State action with some care in cases where there has been overt and intentional discrimination against members of a religious group…in most cases it seems to be sufficient in practice for the State to show that it has acted in good faith…to be able to justify limitations on religion or belief under Article 9(2).167

Evans and Taylor both also note that freedom of public worship has been deemed to be such an important value, that State encroachments upon it receive little if any margin of appreciation.168 But it is their quote from C v the United Kingdom169 to make this point, that arguably provides the best insight into how a religious confession would fare if its confidentiality were considered in the European Court. Article 9 primarily protects the sphere of personal beliefs and religious creeds, i.e. the areas which is sometimes called the forum internum. In addition, it protects acts which are intimately linked to these attitudes such as acts of worship and devotion which are aspects of the practice of religion or belief in a generally recognised form. However, in protecting this personal sphere, Article 9…does not always guarantee the right to behave in the public sphere in a way which is dictated by such belief:for instance by refusing to pay certain taxes because the revenue so raised may be applied for military expenditure. The Commission so held in [Arrowsmith170] where it stated that the term “practice” as employed in Article 9(1) does not cover each act which is motivated or influenced by a religion or belief.

167

Op cit, p. 134. Evans notes that “where freedom of public worship was at issue, the Court” was prepared to delimit the margin of appreciation “ ‘to secure true religious pluralism, an inherent feature of the notion of a democratic society’ ” (op cit., p. 144, citing Manoussakis and others v Greece, 17 Eur. Ct. H. R. (ser. A) 1347 (1996-IV) ). She also states that “ ‘[w]orship has been given the highest status of the manifestations listed in Article 9(1).” (op cit., p. 107). She and Taylor then both quote the passage which is cited above from C v the United Kingdom (App. No. 10358/83 (1983) 37 D&R 142) to similar effect (op cit., pp. 214–215). 169 C v the United Kingdom (App. No. 10358/83 (1983) 37 D&R 142. 170 Arrowsmith v the United Kingdom, App. No. 7050/75 (1978) 19 D&R 5. 168

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To summarize – Is religious confession and the privilege by which its sanctity is customarily protected, behaviour which is ‘intimately linked to a personal belief or religious creed’? Or is it rather ‘behaviour in the public sphere which is merely dictated by such belief ’? These questions focus the essence of the Arrowsmith test of what constitutes a manifestation of religious belief that will be protected by Article 9(2) of the Convention. That test has been consistently followed in subsequent decisions. Taylor says it marked a turning point in Article 9 jurisprudence by formalising a strict connection between beliefs and their manifestation, principally as a means of coping with the difficulties of defining the term ‘practice’ and of controlling the range of imaginative claims based on the form of manifestation.171

Is a religious confession a religious practice or is it an action ‘motivated or influenced by it’? If the pure Arrowsmith test wording is applied, the answer may be that it depends on what the beliefs and practices of the particular believer are. In some religious faiths including Roman Catholicism, there is little doubt that religious confession is a well established practice that is required of all believers. In other Christian faiths, the need of believers to confess their sins is provided for with an established procedure when required, but it is not compulsory. In other Christian faiths again, the most informal of confessional circumstances are ecclesiastically acceptable. And in non-Christian faiths, there are guidance practices where there is an expectation of confidentiality, but again, with no prescribed ritual. Where there is fixed and regular ritual, one would expect the application of the Arrowsmith principle to result in a finding that the religious confession concerned was a religious practice protected by Article 9. But a confession in a religion with a less formal confessional structure, might well be interpreted as a practice merely motivated by belief but not necessary or required by it. This logic seems unsatisfactory both in the interests of that religious equality at which L’Heureux-Dubé pointed in Gruenke’s case and because, as Taylor says, the result can depend upon the way in which the parties “couch…their arguments”.172 It is also too simplistic to explain why the European Court and Commission have not upheld cases about headscarves when applicants have claimed that wearing the headscarf was “one of the ‘observances’ and ‘practices’ prescribed by her religion”.173 Even though religious confession became a significant badge of difference between Roman Catholic orthodoxy and Protestantism during the Reformation, it is unlikely to galvanize political opinion in the twenty-first century the way cases about religious apparel do, particularly since it is of the very essence of religious confession that it is a private religious devotion.

171 172 173

Taylor, op cit., p. 211. Taylor, op cit., p. 211. Ibid, p. 215.

Common Law in the United Kingdom and Ireland 249 While ideologically some readers may feel that an applicant’s claim of religious confession privilege is so important that it should always be protected on proportionality grounds, it is clear that public safety considerations will likely justify suppression of this individual right in favour of a greater public interest. This seems to be the reason why the majority of the Supreme Court of Canada in Gruenke’s case174 decided that the availability of religious confession privilege should be decided on a ‘case-by-case’ basis.175 However, in that decision, it was the lack of an expectation of confidentiality that outweighed Adele Gruenke’s private religious right to confidential confession, rather than any compelling State need to have the evidence. Religious Confession Privilege in England? Where then does religious confession privilege stand in the United Kingdom in a post HRA age? At common law this book has demonstrated that there are materials from which to craft a broad ecumenical confidential religious communications privilege. And the European Convention certainly provides additional material to buttress that available common law foundation. But English judges are addicted to knowing all the evidence before they make their decision even though gaining that knowledge has always represented an imposition upon the religious beliefs and practices of some believers. Though that historical judicial attitude has certainly chilled past religious practice as L’HeureuxDubé J might say, it is by no means certain that the perceived and continuing judicial need for all the evidence, would fail despite the illusion of protection afforded in Article 9 of the Convention. Hypothetically it is arguable that if the United Kingdom chose to enact a religious confession privilege statute and then to revoke it in criminal cases, a case challenging the validity of the revocation statute other than in national security or child abuse issues, might succeed since the imposition upon freedom of religious practice may not be justified in the interests of public order or in the interest of preserving the rights and freedoms of other people. But even that result is no more than a possibility since the regular prosecution of crime is about the preservation of the rights and freedoms of other members of society. Absent a religious confession privilege statute, rather than find the Convention as founding a clear religious confession privilege, it seems most likely that a British court (outside of Ireland176) adjudicating the merits of an individual’s right to have religious confessions privileged from disclosure in any judicial forum, would weigh that individual’s private religious interest in confessional confidentiality against the

174 175 176

Idem. R v Gruenke[1991] 3 SCR 263 See discussion infra, pp. 251–252.

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State’s interests in obtaining otherwise relevant evidence to protect public health and safety. While there may be a need for a recognized and defined pastor-penitent privilege category to promote certainty and to avoid chilling these invaluable spiritual relationships which benefit society in many ways,177 without a statutory religious confession privilege, religious confidentiality will probably only be upheld in relatively simple criminal and civil cases where the public interest of the moment does not outweigh Europe and England’s declining interest in things religious. It is also likely that the first case that suggests that religious confession privilege is a necessary element of religious freedom under Article 9 of the Convention at a high level in the UK or at Strasbourg, will be all important. In the unlikely event that the confidentiality of a Roman Catholic religious confession is challenged outside of a terrorism or child abuse context, then the privilege will probably be recognised and the prosecutor’s contrary submissions declined. But if an informal non-ritualistic confession from a new Christian faith or an approach to a counsellor from the Islamic or Buddhist tradition were first considered in a public security case, it is likely that the privilege claim would be denied setting a precedent that would make future privilege claims more difficult to assert and uphold no matter how traditional and formal their character. It is submitted that the way the European jurisprudence develops will very much depend on the nature of the first case that raises religious confession privilege for consideration. If the case emanates from a well established religion that requires regular confession from its adherents, it is hard to imagine that the European Court would accord the State a significant margin of appreciation and decide that the effort to coerce disclosure of the confession concerned was in proportion to society’s need for the evidence. But it is further submitted that even a ritualised Roman Catholic confession would struggle to retain its confidentiality if the State was exerting all its power to protect its citizens from a terrorist attack. In that case, it seems likely that coercion of a priest to disclose the most worshipful confession would be deemed proportionate to society’s security need and therefore within the State’s margin of appreciation, whether he could be forced to tell or not. Scotland, Northern Ireland and Wales Through the various acts which devolved a form of self-government to each of Scotland, Northern Ireland and Wales in 1998,178 “[t]he Convention was given indirect effect [in those countries] prior to the coming into force of the HRA

177

R v Gruenke[1991] 3 SCR 263, 311. Respectively, Scotland Act 1998, the Government of Wales Act 1998 and the Northern Ireland Act 1998. 178

Common Law in the United Kingdom and Ireland 251 through the individual devolution provisions”.179 The combined effect of those provisions and the HRA mean that Convention issues in those countries may now be resolved “as devolution issues of under the HRA”.180 By reserving final Convention questions from these three countries to the Judicial Committee of the Privy Council, the intention has been to preserve a uniform human rights law throughout the United Kingdom. However, because none of the ‘devolved’ Parliaments or their Executives have power to legislate in a manner that is inconsistent with the Convention, the courts of those countries may declare acts of those bodies to be invalid. Where a Westminster Parliamentary act passed with effect in all of the United Kingdom is challenged, the courts strongest tool if they find inconsistency with the Convention is the declaration of incompatibility. For all practical purposes while the law with regard to religious freedom has changed post devolution because it now indirectly incorporates the Convention and Strasbourg jurisprudence, issues of religious confession privilege should receive precisely the same treatment in Scotland, Northern Ireland and Wales as they receive in the balance of the United Kingdom post the HRA. Ireland The Republic of Ireland was an original signatory of the Convention but like the United Kingdom, did not implement the Convention into its national legal fabric until it passed the European Convention on Human Rights Acts on 31 December 2003.181 Though it is said to be weaker than the HRA in the United Kingdom,182 it has been “heavily influenced”183 by the HRA and contains almost identical provisions to preserve the sovereignty of the Oireachtas – namely the declaration of incompatibility and a provision that such declarations will “not affect the continuing validity, continuing operation of enforcement of the statutory provision or rule of law in question”.184 Though the omission of a provision to oblige the courts, the Houses of the Oireachtas or the President to perform their functions in a manner consistent with the Convention has been criticised,185 since the courts already have an obligation “to administer justice under the Constitution”,186 it is doubtful that this difference will have any practical significance since violations of the Convention will justify those affected in taking the matter to Strasbourg if unsatisfied at home in Ireland. 179 180 181 182 183 184 185 186

Mulcahy, op cit., para 2.07. Idem. Moriarty B., and Massa, E., Human Rights Law, Oxford University Press, 2008, pp. 69–71. Ibid, p. 72. Idem. Ibid, p. 74. Ibid, p. 73. Idem.

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However, because religious confession privilege already has an established base in Irish common law since Gavan Duffy J’s decision in Cook v Carroll187 in 1945, it is unlikely that there will ever be a need for reference to Article 9 of the Convention except for fullness sake. It will be remembered from chapter five188 that Gavan Duffy J found that there existed a confidential religious communications privilege at common law because: “it would be intolerable that the common law, as expounded after the Reformation in a Protestant land, should be taken to bind a nation which persistently repudiated the Reformation as heresy”,189 since that common law resulted from “the regrettable preconceptions of English Judges”;190 and because “the emergence of the national Constitution”191 of Ireland “affirm[ed] the indefeasible right of the Irish people to develop its life in accordance with its own genius and traditions”.192 Conclusion Thus, except in the Republic of Ireland, neither religious confessions, nor confidential religious communications are completely safe even after the passage of the HRA which incorporates the Convention into the legal fabric of the United Kingdom and Ireland. That is because the Arrowsmith interpretation of Article 9 of the Convention does not require States to respect all behaviour in the public sphere which is merely dictated by such belief and because there is ample jurisprudential precedent for taking a case-by-case approach to individual claims for the protection of the manifestation of religious belief under Article 9(2) of the European Convention. To be protected under the Convention, a court in the United Kingdom would need to find both, that the confidentiality of a particular religious confession was so ‘intimately linked to a personal belief or religious creed’ as to be an integral part of that belief, and that the state interest in maintaining the confidentiality of the particular religious confession was not outweighed by security or public health concerns. Such a finding seems more likely in the context of religions with an established confession ritual but a religious penitent cannot be confident even then. Though it seems discriminatory to conclude that a less formal confession would be less favourably treated under the Convention, if a religious confession privilege claimant could not convince a court of the existence of religious confession privilege at common law on the historical grounds previously set out in this book, since religious confession privilege cases will be decided on a case-by-case basis, such discrimination seems unavoidable. 187 188 189 190 191 192

Cook v Carroll [1945] Ir Rep 515. Supra, pp. 149–152. Cook v Carroll [1945] Ir Rep 515, 519. Ibid, p. 520. Ibid, p. 523. Ibid, p. 519.

CHAPTER NINE

RELIGIOUS CONFESSION PRIVILEGE IN THE UNITED STATES Introduction The United States has a legal history which diverges from that of the United Kingdom where religious confession privilege is concerned. That divergence began with independence in the eighteenth century, but it became more earnest when legislators in New York State passed the world’s first religious confession privilege statute in 18281 to alleviate concern that the judiciary did not always protect the confidentiality of religious confessions.2 Statutory coverage became complete in all fifty of the United States during the 1980s,3 though there is still no federal religious confession privilege statute which means the rare cases which raise the issue in federal jurisdictions are decided according to common law principles.4 This chapter will therefore identify the nature of religious confession privilege in United States federal law and will then move to conduct a limited survey of the way in which statutory privilege in the states has been interpreted. To complete this consideration of religious confession privilege in the United States, this chapter will also review the abrogation or limitation of religious confession privilege which has occurred to accommodate the mandatory reporting of child abuse, and the possibility that those intrusions into the inviolability of confidential religious communications might see further abrogation of religious confession privilege in the future. The People v Phillips5 and the Common Law As mentioned briefly in chapters four6 and six,7 The People v Phillips8 in New York State in 1813 remains the leading case as to whether there was a religious confession privilege at common law in the United States before the individual states began to pass religious confession privilege statutes. 1

Rev. Stat. of N.Y. (1828), Pt. 3. c.7. tit. 3 §72. Reese, S, “Confidential Communications to Clergy” (1963) 24 Ohio St LJ 55, 57. 3 See chapter five, note 1. 4 Mullen v US (1959) 263 F 2d 275. 5 The People v Phillips (1813) NY Ct of General Sessions, reprinted at (1843) 1 Western LJ 109. See also “Privileged Communications to Clergymen”, The Catholic Lawyer 1 (1955) 198. 6 Supra, p. 115. 7 Supra, pp. 162–164. 8 The People v Phillips (1813) NY Ct of General Sessions, reprinted at (1843) 1 Western LJ 109. See also “Privileged Communications to Clergymen”, The Catholic Lawyer 1 (1955) 198. 2

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James Cating had stolen property returned to him. When threatened with incarceration himself if he would not tell the police about that restitution, he revealed that his Roman Catholic Pastor, the Reverend Mr Kohlmann had returned his goods. In due course, the Reverend Kohlmann declined to answer both direct and indirect questions9 about the return of the goods when he was summoned to answer questions “at the police office”.10 He again declined to answer questions when he was thereafter subpoenaed before the Grand Jury. But “[b]ills of indictment”11 were none the less issued “against Charles Bradley and Benjamin Brinkerhoff, both coloured men, as principals, and against Philips [sic] and wife as receivers…upon other testimony”.12 In summarising the Reverend Kohlmann’s position in the matter, the court noted all his knowledge respecting th[e] investigation [wa]s derived from his functions as a minister of the Roman catholic church, in the administration of penance, one of their seven sacraments; and that he [wa]s bound by the canons of his church, and by the obligations of his clerical office, to the most inviolable secrecy – which he c[ould] not infringe, without exposing himself to degradation from office – to the violation of his own conscience, and to the contempt of the catholic world.13

The Pastor’s understanding of the doctrine of the Catholic Church with regard to the inviolable nature of the confession was confirmed with independent testimony from the canon law.14 The Decision Mayor Clinton delivered the unanimous judgment15 of the New York Court of General Sessions in the case. He said This is an important enquiry; It is important to the church upon which it has a particular bearing. It is important to all religious denominations, because it involves a principle which may in its practical operation affect them all.16

9 For example, indirect questions were put to him about “the sex or colour of the person who delivered the goods into his hands” (“Privileged Communications to Clergymen”, The Catholic Lawyer 1 (1955) 198, 199) in an effort to extract information that theoretically did not implicate any confession. 10 Ibid, p. 199. 11 Idem. 12 Idem. 13 Ibid, p. 200. 14 Idem. 15 Ibid, p. 201. The reproduced report in “Privileged Communications to Clergymen”, The Catholic Lawyer 1 (1955) 198 states that the court comprised the Mayor and the Recorder with three aldermen present, though either the Mayor or the Recorder had authority under Chapter 10 of the Laws of 1787 (ibid, p. 209). 16 Idem.

Religious Confession Privilege in the United States 255 He then gave the judgment of the court “that such a witness ought not to be compelled to answer”17 with detailed and lengthy analogies to what he said was the established rule against self-incrimination in English common law. He also said that this rule against self-incrimination had been confirmed by an English parliamentary statute after a “collision”18 between thirteen judges “[i]n the case of Lord Melville”.19 He considered and distinguished two cases against religious confession privilege which had been cited in argument from Great Britain and Ireland, and concluded that the protection of free exercise of religion afforded in the constitutions of both the United States and New York State, effectively placed religious confessions beyond the coercive jurisdiction of any court.20 The Reasoning – Analogy to Self-Incrimination Privilege Because Phillips provides the original judicial reasoning for the proposition that there is a religious confession privilege at common law in the United States,21 that reasoning is considered below in some detail. The reasoning is less than perfect. For even though Phillips was ultimately decided on constitutional grounds, the Judge’s suggestion that the Reverend Kohlmann’s testimony was also protected by the privilege against self-incrimination, simply

17

Idem. Idem. 19 Idem. This case was at core, an impeachment trial which commenced April 29, 1806. Mayor Clinton noted that the question of whether a witness should testify in a manner which might oblige him to accuse himself of a crime, had been “referred to the twelve judges; and eight together with the lord high chancellor, against four, were of opinion, that he was bound to answer. To remove the doubt which grew out of this collision, an act of parliament was passed, declaring ‘that a witness cannot by law, refuse to answer a question relevant to the matter in issue, the answering of which has no tendency to accuse himself, or to expose him to a penalty of forfeiture of any nature whatever, by reason only, or on the sole ground that the answering of such question, may establish or tend to establish that he owes a debt, or is otherwise subject to a civil suit, either at the instance of his majesty or of any other person or persons.’ This statute has settled the law in Great Britain. The point in this state may be considered as res non adjudicata – but I have little doubt that when determined, the exemption from answering of a witness so circumstanced will be established.” 20 Ibid p. 207. 21 Walter J. Walsh observes that since the Philips case [sic], “no American court has ever denied the existence of clergy privilege.” (“The Priest-Penitent Privilege: An Hibernocentric Essay in Postcolonial Jurisprudence”, 80 Indiana L.J. [2005] 1037, 1066. See also pp. 1079–1080 where Walsh notes that Justice Scalia of the US Supreme Court insisted in his judgment in City of Boerne v Flores 521 U.S. 507, 543 (1997) “that Philips was wrongly decided and…provides no constitutional free exercise justification for the priest-penitent privilege” and in any event was a “‘weak authority” [and] a ‘lone case from a ‘minor court,’ which had completely misread the constitutional free exercise guarantees in Jeffersonian America”. However Walsh has observed that it is only Justice Scalia’s opinion that the case is lonely. For “13 courts have directly cited Philips as historical support for an American clergy privilege, 4 before the Civil War, and 9 since the Second World War, and Philips’ win-loss record stands at an impressive 11–2.” Walsh has more thoroughly traced the jurisprudential legacy of the Philips decision in his article “The First Free Exercise Case”, 73 Geo. Wash. L.R. 1 (2004). 18

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does not work since all the cases he cites are not about self-incrimination risk at all. Those cases are about witnesses who sought relief from answering questions on grounds of risk of civil penalty or mere embarrassment. It would appear the court’s purpose in citing these cases was to demonstrate that selfincrimination privilege had indeed been used to justify excusing witness testimony in civil cases where such testimony might subject those witnesses to some opprobrium – analogous to the case of a priest who risked degradation from his holy orders rather that criminal penalty if he testified in breach of the seal of confession. But the fact that the English parliament had passed a statute which endorsed the denial of any privilege in cases where testimony might also prove that the witness owed a debt or might subject the witness to civil suit, rather undermines the argument. And the argument is not resurrected by Mayor Clinton’s opinion that he expected there would be a different result if the matter were adjudicated in the United States. Nor was the Mayor’s argument strengthened by the finding in Lord Melville’s case that testimony which might raise the prospect of a civil penalty could not be excluded on grounds of the self-incrimination privilege. Mayor Clinton recognised that his analogy to the privilege against selfincrimination was not completely apt. But he justified his proposed extension of the ambit of the privilege against self-incrimination into cases where there was a prospect of civil penalty, by suggesting there was no practical difference between the effect of a criminal conviction and some civil penalties. He said [w]hether a witness is bound to answer a question which may disgrace or degrade him, or stigmatize him by the acknowledgment of offences, which have been pardoned or punished, or by the confession of sins or vices, which may affect the purity of his character, and the respectability of his standing in society, without rendering him obnoxious to punishment, is a question involved in much obscurity, and about which there is a variety of doctrine, and a collision of adjudications.22

But for Mayor Clinton, “[t]he benevolent and just principles of the common law [were intended to] guard…against temptations to perjury”23 such as might be induced by placing a clergyman “between Scylla and Charybdis, and in such an awful dilemma that he must violate his oath, or proclaim his infamy… in the presence of the scoffing multitude.”24 The Mayor continued and found that since “the feelings of human nature…revolt with horror”25 at the thought that the law might require this clergyman to disavow his oath and subject himself to spiritual degradation, any testimony that he might give about the

22 The People v Phillips, as reported in “Privileged Communications to Clergymen”, The Catholic Lawyer 1 (1955) 198, 201. 23 Idem. 24 Ibid, pp. 201–202. 25 Ibid, p. 202.

Religious Confession Privilege in the United States 257 contents or context of a religious confession were protected from disclosure. He found his ‘self-incrimination logic’ in six cases. In Cooke’s case26 a juror was not obliged to answer a question precedent to a challenge for cause as to whether he had said he believed the defendant guilty. Lord Chief Justice Treby explained that the juror was not obliged to answer a question if the answer might disgrace him.27 In R v Lewis28 Lord Ellenborough relied upon Lord Chief Justice Treby’s decision in Cooke and said a witness was not obliged to answer a question as to whether he had been in a house of correction in Sussex.29 In MacBride v MacBride,30 Lord Avanly had overruled a question of a witness “whether she lived in a state of concubinage”31 since it would “degrade…disgrace or disparage the witness”.32 In State v Bailey,33 the Supreme Court of New Jersey had decided that a witness did not have to answer a question whether he had “been convicted of petit larceny and punished”34 because the answer “might tend to disgrace or dishonor him”.35 In Bell36 the President overruled a question put to the father of an insolvent debtor, because that Judge always overruled a question when the answer “would affect the witness civilly,…subject him to a criminal prosecution,… [or] cover the witness with infamy or shame”.37 And in Jackson ex dem Wyckoff v Humphrey,38 a judge was not required to provide evidence because some questions might have been asked which would have impeached “the integrity of his conduct as a public officer”.39 Though these were clearly sympathetic analogies, Mayor Clinton acknowledged that none of them were exactly on point since they were “retrospective and refer[red] to past conduct, whereas in the case now pending, if we decide that the witness shall testify, we prescribe a course of [future] conduct”40 which shall have an infamous result. While the judge was concerned not to offend the Reverend’s conscience, the essence of his decision was that the resulting offence against the canon law of the church would see this minister “deprived of his office and of his bread, and thrown naked upon the wide world, an object

26

Idem – cited as 4 St.Tr. 748 (1696). Idem. 28 Idem – cited as 4 Espinasses nisi prius cases, 225. 29 Idem. 30 Idem – cited as 4 Espinasses nisi prius cases, 243. 31 Idem. 32 Idem. 33 Idem – cited as Pennington’s Reports, 415. 34 Idem. 35 Idem. 36 Idem – cited as Court of Common Pleas for the first Judicial District of Pennsylvania, Browne’s Reports, 376. 37 Idem. 38 Idem – cited as 1 Johnson’s Reports 498. 39 Ibid, p. 203. 40 Idem. 27

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for the hand of scorn”41 which “cannot be done without our participation and coercion”.42 Such “an offence against high heaven, [would]…seal his disgrace in the presence of assembled friends, and [would]…afflict.a bereaved church and a weeping congregation”.43 The report manifests an almost entirely sympathetic courtroom. The defence counsel had understandably objected to the clergyman’s testimony being lead. Amicus curiae counselled “that in no country where he had been, whether Protestant or Catholic, not even in Ireland, where the Roman Catholic religion was under the ban of proscription, had he ever heard of an instance where the clergyman was called upon to reveal the solemn and inviolable secrecy of sacramental confession”.44 And the prosecutor “read[il]y assent[ed to]…an adjournment of the trial”45 so that the matter could be properly argued. Religious Confession Privilege in English Common Law Mayor Clinton then observed that the British cases about religious confession privilege cited to him did not really address the issue of religious confession privilege and were not helpful. In Du Barré v Livette46 Lord Kenyon had “virtually overturned”47 Mr Justice Buller’s “erroneous”48 denial of confessional privilege in R v Sparkes.49 However, the decision of the Irish Master of the Rolls, Sir Michael Smith in Butler v Moore in 1802, required more attention. Mayor Clinton was in an extravagant mood when he denied any authority flowing from that decision. He said: [T]he decisions of Irish courts, respecting Roman Catholics can have little or no weight. That unfortunate country has been divided into two great parties, the oppressors and oppressed. The Catholic has been disenfranchised of his civil rights, deprived of his inheritance, and excluded from the common rights of man; statute has been passed upon statute, and adjudication has been piled upon adjudication in prejudice of his religious freedom. The benign spirit of toleration, and the maxims of an enlightened policy, have recently ameliorated his condition, and will undoubtedly, in process of time, place him on the same footing with his Protestant brethren; but until he stands upon the broad pedestal of equal rights,

41

Idem. Idem. 43 Idem. 44 Ibid, p. 201. 45 Idem. 46 Du Barré v Livette (1791) 1 Peake 108; 170 ER 96. 47 The People v Phillips, as reported in “Privileged Communications to Clergymen”, The Catholic Lawyer 1 (1955) 198, 204. 48 Idem. 49 Unreported and only referred to in Du Barré v Livette. 42

Religious Confession Privilege in the United States 259 emancipated from the most unjust thraldom, we cannot but look with a jealous eye upon all decisions which fetter him or rivet his chains.50

Though he said he gave the decision no weight, Mayor Clinton none-the-less distinguished Butler v Moore because it did not involve a sacramental confession – only a confidential communication. Thus Sir Michael Smith’s decision was not relevant to the case of the Reverend Kohlmann in any event. Constitutional Protection of Free Exercise of Religion The Mayor then moved on to consider the constitutional protection afforded religion under the New York Constitution of 1777 which endured until 1821.51 Article 38 provided: And whereas we are required by the benevolent principles of rational liberty, not only to expel civil tyranny, but also to guard against that spiritual oppression and intolerance, wherewith the bigotry and ambition of weak and wicked princes… have scourged mankind. This convention doth further in the name and by the authority of the good people of the state, ordain, determine, and declare, that the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed within this state, to all mankind. Provided, that the liberty of conscience, hereby granted, shall not be construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state.52

But the New York State Constitution was not alone in protecting the free exercise of religion. The United States had also adopted a constitution which prevented Congress from establishing any church or creating an “alliance between church and state”53 – “[a] provision conceived in a spirit of profound wisdom, and the most exalted charity, [which] ought to receive the most liberal construction”.54 He then expressed his interpretation of that liberality as follows: It is essential to the free exercise of a religion, that its ordinances should be administered – that its ceremonies as well as its essentials should be protected. The sacraments of a religion are its most important elements. We have but two in the Protestant Church – Baptism and the Lord’s Supper – and they are considered the seals of the covenant of grace. Suppose that a decision of this court, or a

50 The People v Phillips, as reported in “Privileged Communications to Clergymen”, The Catholic Lawyer 1 (1955) 198, 205–206. 51 The 1821 Constitution was ratified by voters between 15 and 17 January 1822 (http://en. wikipedia.org/wiki/New_York_State_Constitutions – last visited 1 September 2008). The original document was drafted by John Jay. 52 As quoted in The People v Phillips, as reported in “Privileged Communications to Clergymen”, The Catholic Lawyer 1 (1955) 198, 207. 53 Idem. 54 Idem.

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Chapter Nine law of the state should prevent the administration of one or both of these sacraments, would not the constitution be violated and the freedom of religion be infringed? Every man who hears me will answer in the affirmative. Will not the same result follow if we deprive the Roman catholic of one of his ordinances? Secrecy is of the essence of penance. The sinner will not confess, nor will the priest receive his confession, if the veil of secrecy is removed: To decide that the minister shall promulgate what he receives in confession, is to declare that there shall be no penance; and this important branch of the Roman catholic religion would thus be annihilated.55

Mayor Clinton summarily dismissed the suggestion that the proviso to Article 38 of the New York State constitution “exclude[d] this case from…protection”56 because the concealment implicit in the protection of secrecy in this case would be “a practice inconsistent with the peace or safety of the state”.57 That proviso, he said, would only apply in cases where “men under pretence of religion, act[ed] counter to the fundamental principles of morality, and endanger the well being of the state”.58 He gave examples – the practice of religious rites “in a state of nakedness”;59 the introduction of the Hindoo practice of “burning…widows on the funeral piles of their deceased husbands…the Mahometan [practice] of plurality of wives, or the Pagan his bacchanalian orgies or human sacrifices”.60 Except in such cases, religious practices were protected under the banner of the free exercise of religion, and that included the Christian religious practice of sealed and confidential confession. But notwithstanding the unanimity of his court, Mayor Clinton’s belief that both common law and constitutional principle demanded the recognition of a common law religious confession privilege, did not immediately resonate very far.61 For just three years later in Mayor De Witt Clinton’s home state of New

55

Idem. Ibid, p. 208. 57 Idem. 58 Ibid, p. 209. 59 Ibid, p. 208. 60 Ibid, pp. 208–209. 61 Mayor Clinton’s belief that a religious confession privilege was justified by common law principle has echoed again recently. In obiter remarks delivered in City of Boerne v Flores 521 U.S. 507 (1997) responding to criticism of his judgment for the majority in Employment Div., Dept. of Human Resources of Oregon v Smith 494 U.S. 872 (1991), Justice Scalia of the US Supreme Court agreed that a decision in favour of religious confession privilege was probably justified in People v Phillips. For even though he disagreed with Mayor Clinton’s constitutional interpretation 184 years after the fact, he said “the same result might possibly have been achieved (without invoking constitutional entitlement) by the court’s simply modifying the common-law rules of evidence to recognize such a privilege” (City of Boerne v Flores 521 U.S. 507, 543 (1997) ). However note that Walter J. Walsh has documented the extensive “jurisprudential influence of Philips [sic] in introducing the judicial free exercise exemption into American constitutional thought” (“The Priest Penitent Privilege: An Hibernocentric Essay in Postcolonial Jurisprudence” 80 Indiana L.J. 1037, 1038 (2005), but more particularly in “The First Free Exercise Case”, 73 Geo. Wash. L.R. 1 (2004) ). 56

Religious Confession Privilege in the United States 261 York, in The People v Christian Smith62 Judge Van Ness distinguished Mayor Clinton’s decision and admitted the testimony of the Rev. Peter J. Van Pelt,63 both because he was willing to give testimony64 and because there was a distinction between auricular confessions made to a priest in the course of discipline, according to the canons of the church, and those made to a minister of the gospel in confidence, merely as a friend or adviser.65

Whether the jury’s decision to acquit after seven hours consideration66 manifested disagreement with the Judge about the nature of religious confession privilege, or instead upheld the defendant’s right to defend his property against a trespasser and a thief,67 cannot be determined. But the Catholic authors of “Privileged Communications to Clergymen” in 195568 have asserted that the religious confession privilege statute passed by the New York legislature in 1828 was “a result of the Smith case”,69 though they do not explain their assertion.70 And it is fair to observe that Van Ness J’s acceptance of testimony from a clergyman willing to provide it, has resonated elsewhere in the AngloAmerican world.71 The First Religious Confession Privilege Statute None the less, the 1828 statute clarified the position thenceforward in New York and has provided a model which has been much followed and developed ever since. It read

62 2 City Hall Recorder (Rogers) 77 (N.Y. 1817) as reported in “Privileged Communications to Clergymen”, The Catholic Lawyer 1 (1955) 198, 209. 63 Ibid, p. 210. 64 After counsel for the defendant objected to the Minister’s testimony citing Mayor Clinton’s decision in Phillips, Judge Van Ness asked the witness “if he had any objection to state the communication made by the prisoner” to which “the witness answered, that he had not” (ibid, p 211). 65 Ibid, p. 211. 66 Ibid, p. 212. 67 Other evidence had established that there had been “certain unhappy differences between these men for sixteen years” aggravated by the night walking of the deceased on the defendant’s property. The Rev. Van Pelt’s evidence was that the deceased had shaken and collected black walnuts from the accused’s tree and had been accosted. The accused had then pursued the deceased when he would not give himself up (Ibid, pp. 210–212). 68 “Privileged Communications to Clergymen”, The Catholic Lawyer 1 (1955) 198, 213. 69 Idem. 70 Their footnote reference to Wigmore suggests that he discusses the evolution of the privilege at common law, but they make no reference to any authority for the proposition that the statute corrected the Smith decision, nor why that correction was delayed for eleven further years. This author’s reading of Wigmore suggests that he did not believe a religious confession privilege had ever been established at common law. 71 For example, when Best CJ learned that a banc of judges had disapproved his blanket exclusion of religious confidences (R v Radford Assizes 1823, referred to with disapproval in R v Gilham (1828) 1 Moody Cr. Cas., 186, 197, 202; 168 ER 1235, 1239), he distinguished their

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Chapter Nine No minister of the gospel, or priest of any denomination whatsoever, shall be allowed to disclose any confession made to him in his professional character, in the course of discipline enjoined by the rules or practice of such denomination.72

On the face of it, the New York legislature charted a compromise course between the decisions of Mayor Clinton and Judge Van Ness. For the statute recognises both Mayor Clinton’s wish to protect sacramental religious confessions and Judge Van Ness’ wish to narrow the principle to ensure that mere confidential communications were not privileged. Whether this New York statute thus represents a successful codification of the ‘common law’ which resulted from the Phillips and Smith decisions will remain moot.73 It seems unlikely that Mayor Clinton would have been completely satisfied with the decision of Judge Van Ness. But the only jurisdiction in the United States for which the two decisions retain any contemporary relevance except perhaps as a matter of historical context, is the federal jurisdiction since the fifty states have all had religious confession statutes since the 1980s at the latest.74 And the issue of religious confession privilege is not reported to have presented itself for adjudication in the federal jurisdiction until Mullen v United States in 1958.75

finding by noting that perhaps such evidence could be received from a clergyman who had no objection to providing it (Broad v Pitt (1828) 3 Car & P., 518, 519; 172 ER 528–529). 72 N.Y. Revised Statutes, 1828, Pt. 3, c.7. tit. 3. §72. 73 Professor Walsh cites “the New York revisers” note that Justice Van Ness had “admitted and recognized” the Phillips decision in the case of Christian Smith. He also notes that De Witt Clinton who had been the presiding judge in the Phillips case was Governor at the time that the “Philips’ [sic] priest-penitent privilege” was codified. But his further note that “[t]he New York codifiers also specified that the penitent as well as the minister held the privilege” stands at odds with the Van Ness J decision in the Christian Smith case since it seemed that the penitent in that case did not want the clergyman’s evidence presented in court ( (“The Priest-Penitent Privilege: An Hibernocentric Essay in Postcolonial Jurisprudence”, 80 Indiana L.J. [2005] 1037, 1056). 74 Note that Seward Reese in 1963 finds that only six states do not have a religious confession privilege state (“Confidential Communications to the Clergy”, Ohio State Law Journal 24 (1963)55. In 1976, Sister Simone Campbell notes that only three states (Alabama, Mississippi and New Hampshire) lack such statutes (“Catholic Sisters, Irregularly Ordained Women and the Clergy-Penitent Privilege”, U.C. Davis L.R. 9 (1976) 523, 526. Jacob Yellin says “[f]orty-six states and the District of Columbia currently have statutes” in 1983 (“The history and current status of the clergy-penitent privilege”, Santa Clara L.R. 23 (1983) 95, 114. Michael Clay Smith says all but two states have a statutory religious confession privilege in that same year (“The Pastor on the Stand: Towards a Religious Privilege in the Courts”, Catholic Lawyer 29 (1983) 1,6), but in 1986, Jane E. Mayes who wanted the statutes struck down on unlawful establishment grounds, says that “[a]ll fifty states and the District of Columbia have enacted clergymancommunicant privilege statutes” (“Striking Down the Clergyman-Communicant Privilege Statutes: Let Free Exercise of Religion Govern”, Indiana Law Journal 62 (1987) 397. Wright and Graham note the “amusing inconsistency” of the writers in the 1970s and 1980s over just how many states did and did not have a religious confession privilege statute, and observe that this can be put down to the “maddening vagaries of statutory research” (Wright, CA, and Graham, KW, Federal Practice and Procedure: Evidence, 3rd ed, St Paul Minnesota, West Publishing Co, 1992, § 5612, pp. 48–50). 75 Mullen v United States 263 F. 2d. 275 (D.C. Cir. 1959).

Religious Confession Privilege in the United States 263 Religious Confession Privilege in Federal Common Law Carolyn Mullen had been convicted under a statute which made “it a crime to torture, cruelly beat, abuse, or otherwise wilfully maltreat a child”.76 She appealed her conviction on two grounds. First, her counsel argued that the trial judge had misdirected the jury since the jury was instructed to consider only whether her action was reasonable and was not invited to consider whether the mother intended to maltreat her children. The evidence had suggested that the mother was simple, had chained her children for their own protection when she was absent and that she did not intend to wilfully maltreat them. Secondly, the trial judge was wrong to have invited Carolyn Mullen’s Lutheran minister to give evidence “as to statements made to him by appellant as a penitent in preparation for receiving communion as a Lutheran communicant”.77 The Court of Appeals of the District of Columbia Circuit found that the judgment should be reversed on both grounds. The decision is a strong affirmation of the existence of a common law religious confession privilege in United States federal law for a number of reasons. First, the court went out of its way to make this decision in a case where they could have reversed the trial judge without reference to religious confession privilege. And secondly, the court confirmed that it had expressly addressed the issue for the purpose of declaring that if there was previous doubt as to the existence of such privilege, there should not be any in future.78

76

Idem. Ibid, p. 276. 78 Idem. Though the court gave its decision to reverse on December 4, 1958, Judge Fahy confirmed on that date that he would later provide his response to the appellant’s submission that the Lutheran minister’s testimony should not have been admitted. While he did not confirm on December 4 that he would confirm reversal on the second ground, it seems clear that he wanted to provide a judgment on the subject of religious confession privilege which would settle the matter for the future. And indeed, when he did provide his reasons on January 29, 1959 it is clear that he had given even the very historical material very detailed consideration and left no doubt that the privilege would be recognised in United States federal law thenceforward, unless the Supreme Court who held ultimate federal judicial authority saw fit to revisit the matter (ibid, p. 279). Judge Edgerton’s language affirming a religious confession privilege in United States federal law thereafter, is even more firm. He said 77

I think a communication made in reasonable confidence that it will not be disclosed, and in such circumstances that disclosure is shocking to the moral sense of the community, should not be disclosed in a judicial proceeding, whether the trusted person is or is not a wife, husband, doctor, lawyer or minister. He also quoted Justice Holmes who thought it “less evil that some criminals should escape than that the Government should play an ignoble part” (Olmstead v United States 277 U.S. 438, 470; 48 S.Ct. 564, 575; 72 L. Ed. 944, dissenting opinion), an apparent suggestion that Judge Edgerton thought that the trial judge had acted ignobly when he brought the Lutheran minister in Mullen back on to the stand to provide further testimony even though there was no objection from the defendant’s counsel.

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In the trial at first instance, the defendant’s Minister had given brief character testimony but when the defendant later gave evidence denying that she had chained her children, he asked to see the judge and was recalled because “he felt that he had been unable to say all that his conscience impelled him to say”.79 He then testified that the defendant had admitted chaining her children for their protection, for he would not “admit her to communion”80 unless she confessed. The federal judges on appeal stated that they were not prevented from reviewing the legality of the admission of that evidence even though the defendant’s counsel had not objected to its being adduced. Their right to review was the more pressing since the witness had been called by the judge which “tended to restrain objection”.81 They observed that “the testimony [concerned] was so critical that they [were obliged]…to consider its admissibility even if not required to do so”.82 While they considered their decision would have been simpler if the minister concerned was “known to be bound to silence by the discipline and the law of his church”,83 a federal common law privilege should “include a confession by a penitent to a minister in his capacity as such to obtain such spiritual aid as was sought and held out in this instance”.84 The court then gave balanced consideration to the question of whether there could be said to be an existing religious confession privileged in United States federal law.85 They noted the dicta in favour of such privilege in Totten v United States86 in 1876 where the Supreme Court had opined that “suits cannot be maintained which would require a disclosure of the confidence of the confessional”.87 They also noted statements from both Judge Learned Hand88

79

Idem. Ibid, p. 277. 81 Idem. 82 Idem. 83 Idem. 84 Idem. In expressing this expectation, Judge Fahy who gave this part of the concurring judgment, observed that a similar finding had resulted in In re Swenson (1931) 183 Minn. 602; 237 N.W. 589 where the Minnesota Supreme Court had interpreted a statute to recognise the privilege in a case where church discipline required the disclosure. Judge Fahy’s recognition of the influence of a state statute upon his decision of the nature of federal common law, comes very close to an acknowledgment that statutes in the United States (as in Australia – see discussion supra pp. 207–210) exercise gravitational pull upon the common law. 85 The author consider Wright and Graham’s treatment ‘balanced’ when compared with many other commentaries. For as Wright and Graham observe, most other commentators simply ignored the federal case law and denied outright the existence of a religious confession privilege at common law (Wright, CA, and Graham, KW, Federal Practice and Procedure: Evidence, 3rd ed, St Paul Minnesota, West Publishing Co, 1992, § 5612, p. 53). 86 92 U.S.105; 23 L.Ed. 605. 87 Totten v United States 92 U.S.105, 107; 23 L.Ed. 605. 88 Citing his decisions in the Court of Appeals for the Second Circuit in McMann v Securities and Exchange Commission 2 Cir., 1937; 87 F. 2d. 377, 378; 109 A.L.R 1445 and McMann v Engle 301 U.S. 684; 57 S.Ct. 785; 81 L.Ed. 1342. 80

Religious Confession Privilege in the United States 265 where he included the privilege of a penitent as a “traditional privilege”89 and Judge Holtzoff from their own District of Columbia Court of Appeals where he had “said in passing that under the law of the United States privileged communications include that of ‘clergyman and penitent’ as well as those of attorney and client and physician and patient”.90 They noted from Nolan91 that religious confession privilege was probably recognised in English common law before the Reformation;92 that it had possibly been “abrogated or abandoned”93 thereafter, but that they had authority to recognise such privilege “in light of reason and experience”94 under federal criminal rule 26 adopted in 1948 even if that privilege was not clearly manifest in an unbroken line of common law decisions or in a statute passed by Congress.95 Though they noted that “the trend of decisions has been chiefly in the direction of enlarging rather than restricting the area of admissibility of evidence”,96 “the dead hand of the common law will not restrain… recognition”97 of a privilege when “reason and experience call for its recognition”. Reason and experience together with the dictates of sound policy did call for recognition of religious confession privilege: [N]on-recognition of the privilege at certain periods in the development of the common law was inconsistent with the basic principles of the common law itself….In our time, with its climate of religious freedom, there remains no barrier to adoption by the federal courts of a rule of evidence on this subject dictated by sound policy. Sound policy - reason and experience – concedes to religious liberty a rule of evidence that a clergyman shall not disclose on a trial the secrets of a penitent’s confidential confession to him, at least absent the penitent’s consent…The benefit of preserving these confidences inviolate overbalances the possible benefit of permitting litigation to prosper at the expense of the tranquility of the home, the integrity of the professional relationship, and the spiritual rehabilitation of a penitent. The rules of evidence have always been concerned not only with truth but with the manner of its ascertainment.”98

89

Mullen v United States 263 F. 2d. 275, 278 (D.C. Cir. 1959). Citing United States v Kenney, D.D.C. 1953; 111 F. Suppl. 233,234, though noting this decision had been reversed on other grounds. 91 Nolan, RS, “The law of the seal of confession” (1913) 13 Catholic Encyclopaedia 649. 92 Mullen v United States 263 F. 2d. 275, 278 (D.C. Cir. 1959). 93 Idem. 94 Idem, quoting rule 26 from the 1948 federal criminal rules. 95 Idem. 96 Ibid, p. 279. 97 Idem, quoting the well known phraseology from Rosen v United States 245 U.S. 467,471; 38 S.Ct. 148, 150; 62 L.Ed. 406 where the Supreme Court considered “the old rule disqualifying a witness convicted of a crime” (Mullen v United States 263 F. 2d. 275, 279 (D.C. Cir. 1959) ) and memorably said that “the dead hand of the common-law rule of 1789 should no longer be applied in such cases”. 98 Ibid, p. 280. 90

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The decision in Mullen still stands as the final word on the status of religious confession privilege at common law in the United States. That privilege is demonstrably an ecumenical privilege that does not require proof of internal church disciplinary rules which would sanction a member of the clergy for disclosing confessional secrets. But the facts of Mullen do potentially limit the confidential communications between the priest and penitent which the privilege protects. For the confession by Carolyn Mullen was made to the “minister in his capacity as such to obtain such spiritual aid as was sought and held out”.99 That kind of confession seems to resonate with the kind of confessional communication which the Supreme Court of Canada said it would protect under the common law in that country100 and which the New Zealand Court of Appeal identified as falling within the protected reach of its ecumenical statute in 1983.101 Have the decisions of United States’ courts about the scope of their statutory religious confession privileges since the Mullen decision in 1958, broadened or narrowed the nature of the generous common law privilege recognised in Mullen? Notwithstanding this treatment is essentially a treatment of the nature of religious confession privilege at common law, this question is relevant since Judge Fahy in Mullen referred to the Minnesota Court of Appeal’s decision about the ambit of that state’s religious confession privilege statute in Swenson in 1931.102 It is also relevant since it has been demonstrated in Australia as a federal jurisdiction that features some common law jurisdictions and some jurisdictions with statutes, that statutory jurisdictions do exercise a measure of gravitational pull upon the common law in the jurisdictions which do not have a statute.103 The Spread of Religious Confession Privilege Statutes Judge Fahy in Mullen also inferred that the existence and nature of religious confession privilege at common law once formally recognised, was not a permanent and eternal fixture of the evidentiary landscape either in principle or in form. He suggested that the reason why the privilege may not have been recognised in post-Reformation England, was because “religious and political tensions largely set the pattern in such matters”.104 And in his statement quoted

99

Ibid, p. 277. R v Gruenke [1991] 3 SCR 263. See discussion supra pp. 144–148 and infra pp. 289–291. 101 R v Howse [1983] NZLR 246. See discussion infra pp. 295–297. 102 In re Swenson (1931) 183 Minn. 602; 237 N.W. 589. 103 See discussion supra pp. 207–210. See also note 84. 104 Mullen v United States 263 F. 2d. 275, 278 (D.C. Cir. 1959). 100

Religious Confession Privilege in the United States 267 above, he said that “the climate of religious freedom”105 when his court was called upon to decide Carolyn Mullen’s case presented “no barrier to the adoption [of such a rule] by the federal courts”.106 In tracing the gradual spread of religious confession privilege states across the United States, Wright and Graham have observed their “sudden proliferation”107 in an eight year period between 1955 and 1963. During that period fourteen states enacted such privileges for the first time taking the total number of states with religious confession privilege statutes from thirty to forty-four.108 During the century after the first New York statute was passed in 1828, Wright and Graham describe state interest in passing such statutes as “quiescent”109 though “the New York statute began to spread”.110 They note from Wigmore’s first edition in 1904 that twentyfive states had such statutes with only an additional four states passing such statutes by 1938.111 Why then the sudden upsurge in interest between 1955 and 1963, especially since that interest was manifest not only in new states passing such statutes for the first time, but with many states “broaden[ing] the scope” of their existing statutes?112 Wright and Graham explain that a number of factors113 appear to account for this urgency: The horrors of the Holocaust, the experience of the war years, and the propaganda demands of the Cold War made people more appreciative of the virtues of religious pluralism and less tolerant of anything that smacked of religious persecution by the state[,]114

plus, they say, there was a “bandwagon effect”.115 States without such a statute did not want to be in the minority.116 Fred L. Kuhlmann observed in 1968 at a time when he found only six states without a religious confession privilege statute, that the existence of such a statute did not guarantee the practical inviolability of confidential religious communications in the courtroom that one might expect: A few cases decided under the traditional statute have offered some encouragement and support to clergymen, but most of the cases have denied the privilege. Unfortunately, the cases form no pattern and offer no constructive guidelines for the clergyman. The court’s decision on the issue of privilege often seems to

105

Ibid, p. 280. Idem. 107 Wright, CA, and Graham, KW, Federal Practice and Procedure: Evidence, 3rd ed, St Paul Minnesota, West Publishing Co, 1992, § 5612, p. 48. 108 Idem. 109 Ibid, p. 47. 110 Idem. 111 Ibid, pp. 47–48. 112 Ibid, p. 49. 113 Idem. 114 Idem. 115 Idem. 116 Idem. 106

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Chapter Nine depend more on the result the court wants to reach on the substantive issue in the case than on a logical application of the clergyman-penitent statute. One gets the impression, which cannot, however, be documented, that where the court wants to reach a result that can best be obtained by exclusion of the clergyman’s testimony, it has interpreted the statute strictly; whereas, in cases where the clergyman’s testimony is needed to reach or fortify the desired result on the substantive issue, the court has not hesitated to construe the statute liberally. There is little rhyme or reason to the cases.117

It seems that the legislative enthusiasm Wright and Graham noted for religious confession privilege as a demonstration of religious tolerance and understanding, did not extend to the judiciary during the period 1955–1963. However, when one analyses the cases which Kuhlmann discusses,118 there seems to have been a greater likelihood that the privilege would be upheld if there was a statute in place, and if the case arose in the second half of the twentieth century. This insight confirms Wright and Grahams’ 1992 view as to why there was a frenetic interest in religious confession privilege statutes between 1955 and 1963. It took a while to filter through to the judiciary, but the virtues of religious pluralism and tolerance eventually permeated right through American society finding expression first through the legislatures and eventually into the judiciary. Thus, with the benefit of more hindsight than was available to Kuhlmann in 1968, Wright and Graham were right to observe

117 Kuhlmann, FL, “Communications to clergymen - When are they privileged?” (1968) 2 Valparaiso ULR 265, 269. 118 Kuhlmann lists cases upholding and denying the privilege as follows: Upholding: In re Swenson 183 Minn. 602; 237 N.W. 589 (1931); Mullen v United States 263 F. 2d. 275 (D.C. Vig. 1958); Kohloff v Bronx Savings Bank 37 Misc. 2d 27; 233 N.Y.S. 2d. 849 (Civ.Ct. City of N.Y. 1962); Krugilov v Krugilov 29 Misc. 2d 17; 217 N.Y.S. 2d 845 (Sup.Ct. 1961), appeal dismissed, 226 U.S. 2d, 931 (1962); Vickers v Stoneman 73 Mich. 419 (1889); Dehler v State ex rel Bierck 22 Ind.App. 383; 53 N.E. 850 (1899). Denying: Knight v Lee 80 Ind. 201 (1881); Angelton v Angleton 84 Idaho 184; 370 P.2d 788 (1962); In re Koellen’s Estate 162 Kan. 395; 176 P. 2d 544 (1947); Gillooley v State 58 Ind. 182 (1877); Johnson v Commonwealth 310 Ky. 557; 221 S.W. 2d 87 (1949); Commonwealth v Gallo 275 Mass. 320; 175 N.E. 718 (1931); State v Morehous 97 N.J.L 285; 117 A. 296 (1922); Partridge v Partridge 220 Mo. 321; 119 S.W. 451 (1909); People v Gates 26 N.Y. Com.L. Rep.311 (1835); Colbert v State 125 Wis. 423; 104 N.W. 61 (1905); Milburn v Haworth Mo. 593; 108 P. 155 (1910); State v Andrews 187 Kan. 458; 357 P.2d 739 (1960); Alford v Johnson 103 Ark. 236; 146 S.W. 516 (1912); Sherman v State 170 Ark.148; 279 S.W. 353 (1926); State v Morgan 196 Mo. 177; 95 S.W. 402 (1906); Mitsunaga v People 54 Colo. 102; 129 P. 241 (1913); In re Toomes 54 Cal. 509 (1880); Buuck v Kruckeberg 121 Ind. App. 262; 95 N.E. 2d 304 (1950); In re Schaeffer’s Estate 52 Pa.Dauphin Co.Rep. 45 (1941); Simrin v Simrin 43 Cal. Rep. 376 (Dist.Ct. App. 1965). However note that in most of these cases, it is also arguable that the court concerned made a genuine effort to interpret the relevant statute. In some cases that process of statutory interpretation dictated recognition of the privilege. In other cases the clear wording of the statute did not allow recognition of the privilege on the facts presented. Kuhlmann himself makes the point, that the statutes under consideration in most of these cases were narrowly drafted and needed amendment if the privilege was to have any practical meaning in non-Catholic contexts. Wright and Graham’s later review allows readers to see that the courts have interpreted more generous amended statutes to recognise the existence of religious confession privilege.

Religious Confession Privilege in the United States 269 that increasing statutory religious confession privilege coverage in the states tangibly demonstrated a growing tolerance and respect for free exercise of religion. While Kuhlmann is certainly correct that “the cumulative weight of the cases denying the privilege emphasizes the inadequacies of the traditional statute”119 which germinated in New York State in 1828, it was a recognition of those inadequacies which led to the broadening of religious confession privilege. That broadening took two forms. First, some states passed a statute for the first time. Secondly, others amended their statutes to improve the protection they already provided. Judges Fahy and Edgerton in Mullen essentially said that the climate in favour of religious freedom and pluralism in 1958 was enough to make the recognition of religious confession privilege at common law, common sense.120 Wright and Graham confirmed from the vantage point of 1992 that the Mullen view in 1958 resonated with that time. Not only were federal courts willing to hear and decide on the basis of the good that was religious freedom, tolerance and pluralism, but the legislatures agreed and passed numerous statutes which confirmed the existence of religious confession privilege or expanded the ambit of such privileges as already existed. From Generous Protection of Free Exercise Toward Neutrality But since the 1960s, federal jurisprudence has moved away from such overt generosity towards religion, most notably when the ‘compelling interest test’ previously used to determine whether the state had unreasonably burdened the free exercise of religion, was set aside by the Supreme Court in 1991.121 Some state legislatures too, have eroded the reach of the religious confession statutes by abrogating that privilege when a member of the clergy should have formed a suspicion that a child is or has been the victim of some form of abuse.122 What has this changed climate done to the state of religious confession privilege at common law in the federal United States? And what has it done to the likelihood that courts will interpret religious confession statutes generously in favour of the inviolability of both formal confessions and confidential communications in faiths without secrecy rules for clergy or formal disciplinary processes? In 1958 Judge Fahy in Mullen said that “the benefit of preserving [religious confidences] overbalances the possible benefit of

119

Kuhlmann, op cit, p. 277. Mullen v United States 263 F. 2d. 275, 280 (D.C. Cir. 1959). 121 Employment Division v Smith 494 U.S. 872 (1990). 122 For example, see commentary by Mitchell, MH, “Must Clergy Tell? Child Abuse Reporting Requirements Versus the Clergy Privilege and Free Exercise of Religion” (1987) 71 Minn L Rev 723 and Cole, WA, “Religious Confidentiality and the Reporting of Child Abuse: A Statutory and Constitutional Analysis” (1988) 21 Columbia Journal of Law and Social Problems 1. 120

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permitting litigation to prosper at the expense of the … rehabilitation of a penitent”.123 Do contemporary United States federal courts agree that Judge Fahy’s summary still reflects the policy underlying the law in the twenty-first century? Certainly Judge Fahy’s generosity endured for a time. In In re Verplank124 in 1971, the Federal District Court quashed a grand jury document subpoena for counselling files from an agency headed by a Presbyterian minister. As the District of Columbia Circuit had done in Mullen, the court in Verplank used the federal code’s language which obligated them “to consider…claims of privilege in the light of reason and experience, rather than to apply slavishly a particular common law doctrine”.125 By analogy, since attorney’s agents are protected by the attorney-client privilege, so the documents held by “the clergy member’s agents”126 were protected from production by “the clergy-penitent privilege”.127 Though the extension of privilege by analogy has occasionally attracted courts in other jurisdictions,128 it has not appealed to American commentators.129 Some have pointed out that older authority denies that non-clerical leaders in churches should receive the benefit of religious confession privilege.130 However Wright and Graham think “that courts may be adopting a more liberal interpretation than the writers”.131 When Wright and Graham review the prospects of clerics who serve in two capacities at the same time132 (for example a chaplain in a hospital or prison with institutional staff as well as religious clerical responsibility), the older cases make them doubtful that

123

Mullen v United States 263 F. 2d. 275, 280 (D.C. Cir. 1959). In re Verplank 329 F. Supp. 433 (C.D. Cal. 1971). 125 Ibid, p. 435. 126 Campbell, Sister S, “Catholic sisters, irregularly ordained women and the clergy-penitent privilege” (1976) 9 UC Davis LR 523, 537. 127 Idem. 128 Lord Kenyon CJ for example, extended attorney-client privilege to protect what the interpreter heard in Du Barré v Livette (1791) 1 Peake 108; 170 ER 96. Analogical extension of a privilege also justified the House of Lords in privileging an anonymous tipoff provided to the National Society for the Prevention of Cruelty to Children in D v NSPCC [1978] AC 171. 129 Wright, CA, and Graham, KW, Federal Practice and Procedure: Evidence, 3rd ed., St Paul Minnesota, West Publishing Co, 1992, § 5612, p. 113 citing 2 Weinstein & Berger, Weinstein’s Evidence, 1980, pp. 506–510, and 2 Louisell & Mueller, Federal Evidence, 1985, p. 837. 130 Idem, where Wright and Graham note the citation of People v Diercks 44 Ill.Dec. 191 (1980); State v Lender 124 N.W. 2d 355; 266 Minn. 561 (1963) and People v Gates N.Y. 13 Wend. 311 (1835) as earlier state authority for the proposition that religious confession privilege will not be extended to “nonordained pastoral assistants”. 131 Op cit, p. 114 noting cases for the privilege in favour of deacons and elders in the Christian church (Knight v Lee 80 Ind. 201 (1881) ); denying privilege to elders in the Presbyterian church (Reutkemeier v Nolte 161 N.W. 290; 179 Iowa 342 (1917) ) and affirming the privilege in favour of a Latter-day Saint (Mormon) Stake President (State v Cox) 742 P.2d 694; 87 Or. App. 443 (1987) ) and a Church of Scientology ethics officer (People v Thompson 184 Cal. Rptr. 72; 133 Cal. App. 3d 419 (1982) ) in much more recent cases decided after Mullen and after blanket state religious confession legislative coverage. 132 Wright and Graham, op cit., pp. 114–115. 124

Religious Confession Privilege in the United States 271 future privilege claims for these persons will be approved by the courts.133 But they do note a case in the later twentieth century again affirming such a claim of privilege.134 The pattern is not so clear when Wright and Graham review cases involving religious confession privilege claims by the laity or from catholic nuns who traditionally did not hear confessions but could provide confidential spiritual counselling.135 Wright and Graham also found it difficult to predict the outcome of a privilege claim in churches where confessions can be made to any member or where all members have some form of religious calling.136 And there are areas where they cannot make any comment because there had been no cases to assist interpretation when they wrote in 1992. For example, they asked, can a minor be a cleric?137 Must a cleric be a natural person,138 a male,139 or institutionally affiliated?140 And can a “group of human beings who are all ordained clergy” claim the privilege?141 Their assessment then concludes with the observation that “[i]t does not seem in keeping with the ecumenical spirit of the modern statutes or the Supreme Court’s reluctance to allow courts to decide matters of church doctrine”,142 that the privilege would develop in future in a manner which would deprive significant minorities of its benefit. That expectation anticipates later commentary which has suggested that a religious confession privilege which “fail[s] to interpret unclear statutes broadly to include non-Western religions, raises a serious question as to the constitutionality of these statutes”.143 It also

133 United States v Kidd 20 C.M.R. 713 (1955) where it was held that a military officer with a chaplaincy roles was authorised to provide character evidence because such testimony did not require him to reveal communications made to him in his clerical role. 134 State v Burkett 357 N.W. 2d 632 (Iowa 1984) where a jail chaplain was not required to testify about communications with inmates. 135 In re Murtha 279 A.2d 889; 115 N.J. Super. 380 (1971) where a Dominican nun “could not claim the privilege for a conversation she had with a troubled pupil (Wright and Graham, op cit, p. 117); and Masquat v Maguire 683 P. 2d 1105 (1981) where the Oklahoma Supreme Court “assumed a nun” could validly claim the privilege though not in this case since she was consulted a head of the hospital rather than as a spiritual advisor. 136 In re Cueto C.A. 2d 554 F 2d 14 (1977) where a federal court said that lay members of the Protestant Episcopal Church could not claim religious confession privilege before a grand jury and State v Barber 346 S.E. 2d 441 (1986) where it was assumed that a lay exhorter who conducted religious services could not claim the privilege. 137 Wright and Graham, op cit., p. 119. 138 Ibid, p. 120. 139 Ibid, p. 121. 140 Ibid, pp. 122–128, where they discuss the jurisprudence concerning what constitutes a religion and note both that such jurisprudence would “exclude the founders of every major and minor religion” (ibid, p. 122) and that “[t]here are no cases defining ‘religion’ for purposes of the penitent’s privilege” (ibid, p. 126). 141 Ibid, p. 120. 142 Ibid, pp127–128. 143 Horner, C, “Beyond the confines of the confessional: the priest-penitent privilege in a diverse society” (1997) 45 Drake LR 697, 732. See also suggestions that a less than ecumenical interpretation of the privilege would be unconstitutional in Sippel, JA, “Priest-penitent privilege statutes: Dual protection in the confessional” (1994) 43 Catholic ULR 1127, where she concludes

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anticipates commentary which believes the Supreme Court would agree that the government is allowed to “accommodate religious practices”144 despite the view that statutory religious confession privilege is an unconstitutional establishment of religion. What Influence Religious Neutrality? The limited cases which have raised the issue of religious confession privilege since Wright and Graham’s thorough review in 1992, appear to have endorsed their view that the commentators are more conservative than the courts. For even though the Supreme Court had affirmed in Trammel v United States145 that testimonial privileges are to be strictly construed, a variety of courts have interpreted religious confession privilege statutes generously. In Mockaitis v Harcleroad146 in 1996, the Ninth Circuit reversed the District Court for Oregon’s decision that a suspect’s taped confession to a priest while in jail pending trial, was good evidence. After rejecting Harcleroad’s

that “[t]he definition of a priest should be broad enough to grant judges the discretion to determine who will be protected without favouring one religion over another” (ibid, pp. 1163–1164), and earlier in Mayes, JE, “Striking down the clergyman-communicant privilege statutes: let free exercise of religion govern” (1986) 62 Indiana LJ 397 where that author reviewed the partiality of most of the religious confession privilege statutes and concluded that since “a neutral course between avoiding involvement with religion and intervening when necessary to insure free exercise of religion” (ibid, p. 423) was not possible, real neutrality demands a declaration that “such statutes [are] unconstitutional” (idem) with the judiciary instead empowered to conduct a “case-by-case inquiry” (idem) each time a common law privilege was asserted, which is effectively the Canadian ‘solution’ (see discussion supra pp. 144–18 and infra pp. 288–291). 144 Mazza, MJ, “Should clergy hold the priest-penitent privilege?” (1998) 82 Marquette LR 171, 198 quoting Board of Education v Grumet 512 U.S. 687, 705–706 (1994). See also Whittaker, LK, “The priest-penitent privilege: Its constitutionality and doctrine” (2000) 13 Regent ULR 145, 158 where that author expects the “adjoining Free Exercise Clause may allow the privilege to avoid an Establishment Clause grounding”. 145 Trammel v United States 445 U.S. 40 (1980) where a wife’s testimony was admitted against her husband where she wanted to testify despite the spousal privilege. The husband had asserted that the rule in Hawkins v United States 358 U.S. 74 (1958) prevented the admission of such testimony unless both spouses consented. When discussing the Hawkins rule, the court said that it “is invoked not to exclude private marital communications, but rather to exclude evidence to criminal acts and of communications made in the presence of thirds persons. No other testimonial privilege sweeps so broadly. The privileges between priest and penitent, attorney and client, and physician and patient limit protection to private communications. These privileges are rooted in the imperative need for confidence and trust. The priest-penitent privilege recognizes the human need to disclose to a spiritual counsellor in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return…The Hawkins rule stands in marked contrast to these three privileges. Its protection is not limited to confidential communications; rather it permits an accused to exclude all adverse spousal testimony…Our consideration of the foundations for the [spousal] privilege satisfy us that ‘reason and experience’ no longer justify so sweeping a rule as that found acceptable by the Court in Hawkins. Accordingly, we conclude that the existing rule should be modified so that the witness-spouse alone has a privilege to refuse to testify adversely” (Trammel v United States 445 U.S. 40 (1980), pp. 51, 53). 146 Mockaitis v Harcleroad 104 F. 3d. 1522 (1997).

Religious Confession Privilege in the United States 273 contention that the statute was unconstitutional…[because] it goes beyond what is required of a state by the First Amendment, as incorporated in the Fourteenth Amendment and as interpreted by Employment Division., Oregon Dep’t of Human Resources v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed. 2d 876 (1990)147

and his challenge to the constitutionality of the Religious Freedom Restoration Act, the Ninth Circuit denied that every Congressional exemption of religion from generally applicable law “unconstitutionally advances and therefore unconstitutionally establishes a religion”.148 That would invalidate every exemption and deduction in the Inland Revenue Code, the deferments of the Selective Service Act… [t]he creation of chaplaincies in Congress and in the armed forces – particularly striking promotions of religion – must be suspect….We join the other courts of appeal that have considered this challenge and reject it.149

But the court went on and endorsed the privilege in both common law and statute. [T]he history of the nation has shown a uniform respect for the character of sacramental confession as inviolable by government agents… All fifty states have enacted statutes ‘granting some form of testimonial privilege to clergy-communicant communications. Neither scholars nor courts question the legitimacy of the privilege, and attorneys rarely litigate the issues’. It would be strange if a privilege so generally recognized could be readily subverted by the governmental recording of the privileged communication and the introduction of the recording into evidence.150

In Washington v Martin,151 the Supreme Court of the State of Washington considered questions referred after the Court of Appeals had reversed a Superior Court’s narrow interpretation of the state’s religious confession privilege statute. The father of a three month old boy had been charged with murder in the second degree following the child’s death from internal injuries that the staff at the Madigan Army Medical Center concluded “were consistent with the child having been violently shaken”.152 The defendant’s mother had introduced him

147

Ibid, p. 1529. Ibid, p. 1530. 149 Idem. 150 Ibid, pp. 1532–1533 quoting “Developments In The Law – Privileged Communications” 98 Harvard Law Review, 1450, 1556 (1985). Harcleroad had argued that the State legislature had intended to allow such recording since the Wiretap Act forbade the taping of attorney-client interviews but not those between priest and penitent. The Court added that Father Mockaitis’ expectation of confidentiality could not “be made to depend on what a statute fails to forbid…. [T]he inviolability of religious confession to the clergy [was] the law of the land, the expectation of every repentant sinner, and the assured confidence of every minister of God’s grace” (ibid, p 1533). 151 State of Washington v Scott A. Martin & Rich Hamlin, Docket Number 67254 – 7, http://www.tvw.org/modules/opinions/672547_o.htm (last visited November 7, 2008). 152 Ibid, p. 4. 148

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to Rich Hamlin, an ordained minister and pastor of the Evangelical Reformed Church of Tacoma and received assurances that conversations with her son would be confidential.153 Judge Brian M. Tollefson granted the State’s motion that statements made by Martin to Hamlin “not be considered privileged”154 because there was no testimony that Martin “felt he was constrained by any religious obligation to make the statement to Pastor Hamlin”.155 When the trial court then ordered that Pastor Hamlin be deposed, he “answered questions concerning the circumstances of his conversations with Martin but refused to answer questions concerning the content of those conversations based upon his free exercise rights”.156 When the trial court further ruled that Pastor Hamlin had no “independent constitutional right to withhold information from the State”,157 he was held in contempt of court and ordered to report for custody a week later “unless the Court of Appeals or the Supreme Court stayed the order, or unless [he] answered the questions he previously refused to answer”.158 The Court of Appeal reversed the trial court holding that “to the extent [that Martin’s statements]…were confidential, [they were] privileged”.159 On further appeal by the State, the three requirements set out in State v Buss160 were reviewed, namely that “the clergy member must be ordained”;161 “the statements must be made as a ‘confession…in the course of discipline enjoined by the church’; and the penitent must be constrained by religious obligation to make the confession”.162 The Supreme Court of Washington agreed with the Court of Appeals’ finding that “it is the clergy member receiving the confidential communication [and not the penitent who must] be enjoined by the practices or rules of the clergy member’s religion to receive the confidential communication and to provide spiritual counsel”.163 But the Supreme Court went further and stated Although testimonial privileges are usually strictly construed, the word ‘confession’ in RCW 5.60.060(3) should not be. A broad interpretation of ‘confession’ would ‘minimize the risk that [RCW 5.60.060(3)] might be discriminatorily applied because of differing judicial perceptions of a given church’s practices or religious doctrine. The Court of Appeals in this case properly defined ‘confession’ as a confidential communication between a clergy [sic] and a penitent and

153

Idem. Ibid, p. 6. 155 Ibid, p. 7 citing State v Buss 76 Wn. App. 780, 786; 887 P. 2d 920 (1995). 156 Ibid, p. 7. 157 Idem. 158 Idem. 159 Idem. 160 State v Buss 76 Wn. App. 780; 887 P. 2d 920 (1995). 161 State of Washington v Scott A. Martin & Rich Hamlin, Docket Number 67254 – 7, http:// www.tvw.org/modules/opinions/672547_o.htm (last visited November 7, 2008), p. 8. 162 Idem. 163 Idem. 154

Religious Confession Privilege in the United States 275 correctly held that only confidential communications are privileged, that the penitent is the holder of the privilege and that only the penitent can waive the privilege.164

And in two cases involving The Church of Jesus Christ of Latter-day Saints which has an entirely lay clergy, religious confession privilege has been upheld. In the first,165 the Washington State Court of Appeals answered Wright and Graham’s hypothetical question as to whether a “group of human beings who are all ordained clergy” can claim religious confession privilege?166 The trial court had “ordered the Corporation of the President of the Church of Jesus Christ of Latter-day Saints to disclose the report of church disciplinary action for John Roe, a church member who had abused his step-daughters, Jane and Rebecca Doe”.167 The court found that religious confession privilege “did not apply because the LDS church [had not]…establish[ed] that all participants in the disciplinary proceeding were ‘regularly licensed or ordained clergy”.168 The Court of Appeals reversed since on their view169 of “LDS doctrine…the participants in Roe’s disciplinary council were ordained clergy”.170 And in R.K. v Corporation of the President of the Church of Jesus Christ of Latter-day Saints et al171 the District Court for the Western District of Washington at Seattle rejected the plaintiff ’s motion to compel two Mormon Bishops to testify about confessions they had received from a scout leader alleged to have sexually abused boys in his care. Once again, the decision in favour of the claim of religious confession privilege followed because “the conversations the…[Bishops] had with [the accused] are considered to be ‘confessions’ under LDS Church

164

Idem, p. 11. Michael Osborne v Church of Jesus Christ of Latter-day Saints, Docket number 52452–6-I, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=wa&vol=2004_app/524526maj&in… (last visited August 14, 2008). 166 Wright and Graham, op cit., p. 120. See also note 141 supra and supporting text. 167 Michael Osborne v Church of Jesus Christ of Latter-day Saints, Docket number 52452–6-I, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=wa&vol=2004_app/524526maj&in… (last visited August 14, 2008)., p. 2. 168 Idem. 169 Idem. At footnote 6 to its judgment, the court said that it could not resolve the doctrinal arguments or conflicts raised by the parties and noted from Bryce v. Episcopal Church in the Diocese of Colo., 289 F.3d 648, 655 (10th Cir. 2002), citing Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116, 73 S.Ct. 143, 97 L. Ed. 120 (1952) that churches have the power under the Free Exercise Clause ‘‘to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine”. 170 Idem. The Court of Appeals of Oregon had made a similar finding in State v. Cox, 742 P.2d 694 (Or. App. 1986) where the Stake President was a clergyman, “customarily received confessions as a part of his church position and had a duty under the discipline of the church not to disclose confidential communications made to him” (idem). 171 R.K. v Corporation of the President of the Church of Jesus Christ of Latter-Day Saints http:// docs.justia.com/cases/federal/district-courts/washington/wawdce/2:2004cv02338/123236/88/ (last visited November 8, 2008). 165

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doctrine”.172 This finding came despite the fact that the two Bishops had initiated the conversations concerned.173 However, the District Court for Utah, Central Division did not accept that a conversation with church officials following a drowning at a church sponsored activity was a privileged confession because the leaders merely sought to know “what happened…in order to handle the media and attend to other’s interests”.174 Similar respect to the need for a modern ecumenical religious confession privilege may also be found in decisions from courts on the east coast. The Appellate Division of the New Jersey Superior Court held that the personnel files of a religious organisation were discoverable in a claim alleging sexual abuse by a priest,175 unless “any of the documents were protected by clericpenitent privilege”176 because of confessional content. And while the same court denied that New Jersey’s statutory religious confession privilege extended to protect statements made to a state trooper who was also a recently ordained deacon in the Second Baptist Church in Belleville,177 that decision seems unobjectionable when one learns that the defendant had first been read his Miranda rights and the statute required that confessions must be made to the clergyman in his professional character to attract privilege. More forthright affirmation of the ecumenical nature of the modern privilege was expressed in the New York Court of Appeals’ decision in Lightman v Flaum,178 where an exwife unsuccessfully sought compensation from a Rabbi for his disclosure at a custody hearing, of “information imparted in confidence and for the purpose of obtaining spiritual guidance”.179 On the way to deciding that the clergy did not owe their members a fiduciary duty in respect of counsel provided, the court traversed the historical evolution of the religious confession privilege. In particular, the court said that the legislature had Recogniz[ed] the value of extending the privilege to other religions…[by] adopt[ing] CPLR 4505 which applies to confidential communications made by congregants to clerics of all religions (see, People v Carmona, 82 NY2d at 608– 609).[HN1]. CPLR 4504, provides that unless ‘the person confessing or confiding

172

Ibid, p. 5. Idem, citing State v Glenn 115 Wn. App. 540 (2003) “finding confession was privileged when clergyman sought out and initiated conversation with defendant regarding misconduct”, and Doe v Corporation of the President of the Church of Jesus Christ of Latter-Day Saints 122 Wn. App. 556 (2004), 564 “finding that when clergy members confronted defendant in a churchinitiated disciplinary hearing, report from hearing was privileged”. 174 Ellis v U.S 922 F. Suppl. (1996) 539, 542. 175 Corsie v. Campanalonga, 721 A.2d 733 (N.J. App. 1998). 176 Idem. 177 State of New Jersey v Cary Docket number A3969–99, Decided June 1, 2000 http://www .romingerlegal.com/new_jersey/appellate/a3969–99.opn.html (last visited November 8, 2008). 178 Lightman v. Flaum, 97 N.Y. 2d 128 (N.Y.App. 2001). 179 Ibid, HN2. 173

Religious Confession Privilege in the United States 277 waives the privilege, a clergyman, or other minister of any religion or duly accredited Christian Science practitioner, shall not be allowed [to] disclose a confession or confidence made to him in his professional character as spiritual advisor’.180

It would thus seem that Fred L. Kuhlmann’s 1968 concern that “the issue of privilege… seems to depend more on the result the court wants to reach on the substantive issue in the case than on a logical application of the clergyman-penitent statute”,181 has been purged by contemporary courts. It also seems clear that a more ecumenical interpretation of religious confession privilege statutes, has avoided the need to resolve any conflict between the establishment and free exercise clauses of the First Amendment where religious confession privilege is concerned. But several commentators have implied that courts will retreat from this modern ecumenical and broad view of religious confession privilege in the face of legislative concern to ensure that offenders against child abuse laws are brought to justice. Have Mandatory Child Abuse Reporting Laws Eroded Religious Confession Privilege? Mullen182 was a child abuse case and is still considered the leading case endorsing religious confession privilege at common law in the absence of an applicable statute.183 It will be remembered that the Tenth Circuit overruled the trial judge’s admission of a minister’s evidence when he grew uncomfortable with the accused mother’s denial of what he had told her in confession. Again, in a concurring opinion, the court stated Sound policy - reason and experience – concedes to religious liberty a rule of evidence that a clergyman shall not disclose on a trial the secrets of a penitent’s confidential confession to him, at least absent the penitent’s consent…The benefit of preserving these confidences inviolate overbalances the possible benefit of permitting litigation to prosper at the expense of the tranquility of the home, the integrity of the professional relationship, and the spiritual rehabilitation of a penitent. The rules of evidence have always been concerned not only with truth but with the manner of its ascertainment.”184

As already noted, the dictates of reason and experience are a moving target.185 Arguably the phrase, ‘the dictates of reason and experience’, captures in a

180

Ibid, p. 134. Kuhlmann, FL, “Communications to clergymen - When are they privileged?” (1968) 2 Valparaiso ULR 265, 269. 182 Mullen v United States 263 F. 2d. 275 (D.C. Cir. 1959). 183 See discussion supra pp. 262–264. 184 Mullen v United States 263 F. 2d. 275, 280 (D.C. Cir. 1959). 185 See discussion supra pp. 264–265. 181

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nutshell the way in which the whole of the common law responds to societal attitudes. In 1959 the Tenth Circuit formally recognized religious confession privilege in federal common law because its time had come. That those judges accurately gauged the feeling of that time, has been demonstrated in this chapter’s earlier discussion of the wave of enthusiasm for religious confession privilege statutes which eventually saw blanket state coverage.186 Perhaps the blanket of child protection statutes that have since been passed in a later wave of legislative enthusiasm,187 are expressive of more recent dictates of sound policy, even though there is less consistency188 in the mandatory reporting statutes than there is in the religious confession privilege statutes. Perhaps that is because there has been no need to create consistency in mandatory reporting, because inconsistent mandatory reporting statutes do not cause the constitutional problem that a less than ecumenical religious confession privilege 186

See discussion supra pp. 266–269. Cole, WA, “Religious Confidentiality and the Reporting of Child Abuse: A Statutory and Constitutional Analysis” (1988) 21 Columbia JL and Soc. Probs 1, 5. Cole notes in 1987 that “all fifty states, the District of Columbia, American Samoa, Guam, Puerto Rico and the Virgin Islands have enacted statutes requiring specified persons to report to designated authorities any child whom they know or suspect to be abused or neglected”. He also notes compilation of all the statutes in U.S. Dept. of Health and Human Services publication, “State Statutes Related to Child Abuse and Neglect: 1984 (1985) and an analytical overview by Sussman A. And Cohen S., Reporting Child Abuse and Neglect 118 (1975). As of June 2008, the writer notes that the child abuse reporting may be categorised as follows: 187

1. States where the clergy have no duty to report because they are not included among designated mandatory reporters: Nine states - Alaska, Georgia, Hawaii, Iowa, Kansas, New York, South Dakota, Virginia, Washington, plus the District of Columbia 2. States where the clergy are exempt from reporting if the abuse information is received through a confidential communication from any source: Twenty-seven states – Alabama, Arizona, Arkansas, California, Colorado, Florida, Idaho, Illinois, Indiana, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, New Jersey, New Mexico, North Dakota, Ohio, Oregon, Pennsylvania, Wisconsin and Wyoming 3. States where clergy are exempt from reporting only if the abuse information is received through a confidential communication from the offender: Five states – Delaware, Nevada, South Carolina, Utah and Vermont, and 4. States where the clergy have a duty to report because they are included among designated mandatory reporters and the clergy privilege is expressly or impliedly abrogated: Nine states – Connecticut, Mississippi, New Hampshire, North Carolina, Oklahoma, Rhode Island, Tennessee, Texas and West Virginia. 188 Cole, for example notes three categories of child abuse reporting statutes. Those with universal reporting requirements (seventeen states); group-specific reporting requirements (roughly one-half of all states do not list clergy as such reporters; with five states specifically imposing a duty to report); and voluntary reporting (op cit., pp. 8–14). Note that many states have changed their mandatory reporting laws since Cole wrote in 1987. For example, Pudelski writing in 2004 notes that “[a]t the time of [his writing], nineteen states have adopted mandatory child abuse reporting statutes that expressly include clergy members. Fifteen states do not expressly include clergy. Six states do not list clergy, but apply to ‘any person’ or ‘any other person’. Finally, ten states do not list clergy and do not contain an ‘any person’ or ‘any other person’ provision (Pudelski, CR, “Comment: The Constitutional Fate of Mandatory Reporting Statutes and the Clergy-Communicant Privilege in a Post-Smith World”, 98 Northwestern ULR 703, 715).

Religious Confession Privilege in the United States 279 presented in the minds of all commentators. But Cole and Mitchells’ expectation before the Supreme Court decided Employment Division v Smith,189 that states would have to demonstrate a compelling interest if their mandatory reporting statutes were ever to trump the free exercise value implicit in religious confession privilege,190 are clearly not indicative of the outcomes that can be expected in such cases in the future. Both authors tell the 1984 story of the Nazarene minister in Florida191 who was “sentenced to sixty days in jail for criminal contempt of court”192 when he “refused to answer any questions concerning his relationship”193 with one of his parishioners who was suspected of the sexual abuse of his six year old daughter. Cole’s note that the minister only served twenty-four hours of his sentence without the need for appeal194 because “the Florida legislature, in reaction to his case, voted to preserve the religious privilege in cases of child abuse”,195 may be the best indicator of all as to where sound policy stood in 1984. For 1955 commentators have stated that the first religious confession privilege statute in New York in 1828 was passed for similar reasons,196 and Dean Seward Reese said that the first religious confession privilege statute in Delaware in 1961 had a similar genesis.197 However, writing after the Supreme Court struck down the ‘compelling interest test’ in Employment Division v Smith, Pudelski opined that “the Court would likely rule in favor of the state if the statute [abrogating religious confession privilege] is a generally applicable law”.198 But he observed that dicta in Smith opened the door to a hybrid rights claim if a state did seek to force a clergyman to testify against his religious convictions and more particularly against the rules of his church. The door was opened because the Smith court stated: The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not only the Free Exercise Clause alone, but the Free Exercise Clause in

189

Employment Division v Smith 494 U.S. 872 (1990). Mitchell, MH, “Must Clergy Tell? Child Abuse Reporting Requirements Versus the Clergy Privilege and Free Exercise of Religion” (1987) 71 Minn L Rev 723, 805–821; Cole, WA, “Religious Confidentiality and the Reporting of Child Abuse: A Statutory and Constitutional Analysis” (1988) 21 Columbia JL and Soc. Probs 1, 35–50. 191 Mitchell, op cit, p. 723; Cole, op cit., pp. 1–2. 192 Cole, op cit., p. 1. 193 Idem. 194 Ibid, p. 2, note 7. 195 Idem. 196 “Privileged Communications to Clergymen”, The Catholic Lawyer 1 (1955) 198, 213. 197 Reese, S, “Confidential communications to the clergy” (1963) 24 Ohio St LJ 55. Note also that a similar ‘crisis’ motivated the prompt passage of the first religious confession privilege statute in New South Wales Australia in 1988 (supra, p. 165, n 86). 198 Pudelski, CR, “Comment: The Constitutional Fate of Mandatory Reporting Statutes and the Clergy-Communicant Privilege in a Post-Smith World”, 98 Northwestern ULR 703. 190

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In Pudelski’s reasoning, a clergyman under state statutory coercion to testify against his conscience or the rules of his church, represents a classic hybrid rights case. Specifically, the individual could argue the statute both compels him to speak in violation of his religious beliefs and prohibits him from freely exercising his religion.200

If the court accepted that both individual rights were implicated, so the reasoning goes, the court would be obliged to apply the old pre-Smith compelling interest test to determine whether the statutory approach the state had taken to prevent child abuse was the least restrictive means of that prevention. If not, the pre-Smith compelling interest test should still work to protect a religious confession privilege claim. And it would not matter if states amended their laws to avoid singling out the clergy. The fact that a general law damaged both free speech and free exercise would invalidate its affect upon the clergy no matter how the statute were reformulated unless the state could demonstrate that its interest in passing the law was compelling. All the old balancing arguments could be made and the state would have the burden of justifying its mandatory reporting law. But it would not be a simple matter of balancing clergy’s religious and free speech rights against child safety.201 The member of the clergy would ask the court to determine whether the statutory formula was the best or the only way to achieve its child protection objective;202 would submit that the state’s interest in sedulously fostering the priest-penitent relationship203 was damaged by making clergy mandatory reporters204 and perhaps even seek to demonstrate that a clergy mandatory reporting obligation increases the risk of child abuse by shutting off this avenue for victims seeking counselling.205

199 Employment Division v Smith 494 U.S. 872 (1990), 881 as quoted by Pudelski without citations. 200 Pudelski, op cit., p. 723. 201 Mitchell, op cit., p. 807. 202 Ibid, pp. 806–818. 203 These words from Wigmore’s formula (Wigmore, JH, Evidence in Trials at Common Law, Revised by John T McNaughton, Boston, Little Brown, 1961, Vol. 8 paras 2285–2296) for recognising an evidentiary privilege were accepted as part of the reason the tenth circuit found a common law religious confession privilege in Mullen. It has also been suggested “that the enforcement of a mandatory disclosure statute would create a public backlash if the state attempted to enforce the statute by punishing a member of the clergy” (Pudelski, op cit., p. 735). This risk appears borne out by the Mellish case in Florida cited by both Mitchell and Cole (see note 198). However note that the Florida case occurred before the clergy abuse scandals turned public opinion against Catholic clergy in particular in the late 1990s. 204 Mitchell, op cit., pp. 811–812. 205 Idem. See also Cole, op cit., p. 39 and Pudelski, op cit., p. 734.

Religious Confession Privilege in the United States 281 The start-up question is however whether the court would accept Pudelski’s assertion that a religious confession privilege claim against a mandatory state reporting law is a hybrid claim within the meaning of the Smith dictum. Even Pudelski is not confident his hybrid claim argument would prevail in his summary and conclusion. But Cole observes that absent public hysteria, “there seems to be little reason to distinguish child abuse from other serious crime”.206 It is also noteworthy that the religious drug taking which was exposed to sanction by the decision in Smith, pales in comparison with religious confession when the two forms of manifestation are compared as free exercise rights for religious confession is a much more widespread and recognised religious practice. The significance of the absence of any case to determine whether mandatory reporting statutes will trump religious confession privilege, is difficult to assess. That absence may be a product of the confidentiality of the clergy. It may be that prosecutors choose not to call clerical witnesses for any number of reasons including that they doubt the probative value of such evidence as they might provide. Or it may be that a large section of the clergy have accepted their reporting obligations but have found other ways to provide counsel to those with needs flowing from child abuse. What is certain is that religious confession is alive and well as a religious practice in the United States. Conclusion Religious confession privilege has evolved into a broad ecumenical religious communications privilege in the United States. That process has taken almost two hundred years but is unlikely to be reversed. Because confidential communication with the clergy is one of the most universal manifestations of religious practice in United States’ society, it has become an integral part of that free exercise which has been protected by the bill of rights since 1789. But the need to recognise the different way in which confessions take place in the variety of faiths making up plural America, has seen the privilege enlarged from a privilege which once protected only formal ritualised confessions within the Roman Catholic church so that it now protects almost all communications with established clergy where the communication occurred with an expectation of confidentiality. That evolution has resulted in a degree of synchronicity between the religious confession privilege which was first expressed in federal common law in Mullen in 1959, and the religious confession privilege which exists by statute in all the state jurisdictions. While there are statutory differences, courts seeking to avoid an interpretation of a religious confession

206

Cole, op cit., p. 40.

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privilege statute which would offend egalitarian constitutional sentiment for more than a decade have consistently upheld claims of religious communications confidentiality unless there was some obvious objection to the claim. While some commentators have expected that the advent of mandatory reporting laws would cause significant conflict with religious confession practice, there is no evidence that mandatory reporting laws will have any significant long term affect upon the continued existence and recognition of religious confession privilege in United States law.

CHAPTER TEN

RELIGIOUS CONFESSION PRIVILEGE IN CANADA AND NEW ZEALAND Introduction The two Canadian jurisdictions that do have a religious confession privilege statute,1 do not appear to have exerted any gravitational pull upon the existence of religious confession privilege at common law in that country. That may be because the two privileges are quite different and the Quebec privilege is significantly more generous that the privilege in Newfoundland. Nor does either statute precisely capture the common law position as spelled out by the majority of the Supreme Court of Canada in R v Gruenke.2 Since the common law set out in that case responded to the belief that the historical materials were inconclusive as to the existence of religious confession privilege at common law or its nature,3 it is possible that future consideration of common law religious confession privilege in Canada may be significantly influenced by the more detailed understanding of the historical materials provided in this book. However, it will be suggested in this chapter, that the Supreme Court of Canada’s ‘case-by-case’ methodological approach to religious confession privilege which was finalised in R v Gruenke,4 is and will remain predictive of the treatment that religious confession privilege claims will receive in Canada – and will exert influence even in the two jurisdictions which do have a religious confession privilege statute. While the dissenting judgment of L’HeureuxDubé J and its call for the creation of a religious confession privilege category at common law may yet resonate through Canada if she is correct that the ‘case-by-case’ judicial analysis dictated by the majority will chill this free religious practice,5 now that there is some form of religious confession privilege in place right across the nation, the issue seems unlikely to sufficiently attract public concern as might require the recognition of a new privilege category in Canadian evidence law. The prediction of the future treatment of claims of religious confession privilege in New Zealand is an altogether simpler exercise since it has an 1 Quebec, Charter of Human Rights and Freedoms, R.S.Q., c.C-12, 2.9; Newfoundland, Evidence Act, R.S.N. 1990, Chapter e-16, s. 8. 2 R v Gruenke [1991] 3 SCR 263. 3 Ibid, pp. 287–288 per Lamer CJ. 4 R v Gruenke [1991] 3 SCR 263. 5 Ibid, p. 311.

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established religious confession privilege statute that governs the issue across the country.6 That statute is genealogically one of the oldest in the British Commonwealth7 and appears to have been a legislative response to undo the obiter statements of Sir George Jessel MR in Anderson v Bank of British Columbia8 and Wheeler v LeMarchant9 that there was no religious confession privilege at common law. While New Zealand’s statute has received very limited judicial consideration in more than a century since it was passed, Cooke J’s confirmation in R v Howse10 in 1983 that the statute as then formulated did recognise informal religious confessions provided they were “uttered under the dictates or influence of spiritual belief ”11 has captured the need for an ‘ecumenical’ privilege available even in denominations without an established religious confession ritual. However, it is possible that the historical analysis of religious confession privilege at common law provided by this book, will assist future judges to broaden the parameters of the privilege even further when they are required to interpret the new expression of the privilege in the 2006 Evidence Act. When Cooke J and his brethren decided R v Howse in 1983, they had no option but to require that there be a religious confession of some kind to invoke the privilege under the 1981 legislation since that legislation expressly only privileged religious confessions. They also observed that the existence of legislation to define religious confession privilege required judges to avoid “an unduly wide interpretation”12 of its metes and bounds. The 2006 legislation appears to have responded to the historical insight that a truly ecumenical religious confession privilege needs to protect not only confessions, but all confidential religious communications where the penitent has sought spiritual consolation. Canada The Quebec Code Quebec inherited a disposition to recognise religious confession privilege from the Coutume de Paris which variously governed its civil law from the

6

Evidence Act 2006, s. 58. New Zealand’s original religious confession privilege statute was created by section 7 of the Evidence Further Amendment Act 1885 and was broadened by section 9 of the Evidence Further Amendment Act 1895 which deleted the requirement that protected confessions need not only be made to a minister but must be made “in the course of discipline enjoined by the law or practice of such denomination”. Only the religious confession privilege passed in Newfoundland in 1856 is older (An Act to Amend the Law of Evidence passed 12th May 1856 (19th Victoria, Cap. 15, section 6). 8 Anderson v Bank of British Columbia (1876) 2 Ch D 644. 9 Wheeler v LeMarchant (1881) 17 Ch D 675. 10 R v Howse [1983] NZLR 246. 11 Ibid, p. 251. 12 Idem. 7

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seventeenth century through until the advent of its first civil code.13 That code in its turn, was developed “to unify a confused mass of Old French law, British Imperial Acts and local legislation”,14 and came into force on August 1, 1866 after nearly a decade in gestation. Article 275 then provided: [A witness] cannot be compelled to declare what has been revealed to him confidentially in his professional character as religious or legal adviser, or as an offi cer of state where public policy is concerned.15

Even though the privilege set out in this Civil Code of Lower Canada was a generous privilege and was indistinguishable as thus set out from legal professional privilege, the judiciary sought to limit it. In a judgement reminiscent of that of Hill J in R v Hay in 1860,16 Lynch J in the Quebec Superior Court held that a communication to a priest was not privileged because the communication concerned was not one professionally connected with religious confession.17 In this Canadian case named Gill v Bouchard, when making a confession, an apprentice had sought counsel from his priest in connection with his employment. When the apprentice later terminated his employment, the employer sought consequential losses from the priest which he said flowed from the alleged breach of the apprenticeship contract. While Lynch J held that the priest could not rely on Article 275 of the Code to refuse to divulge information which was not part of the confession, on appeal the Court of Queen’s Bench preferred a generous interpretation of Article 275 of the then new code and found that the priest could not be compelled to disclose anything that was said during the apprentice’s confession. When the code was rewritten in 1965 the privilege had been enlarged to read: [T]he following persons cannot be obliged to divulge what has been revealed to them confidentially by reason of their status or profession: 1. Priests or other ministers of religion: 2. Advocates, notaries, physicians and dentists; unless in all cases they are expressly or implicitly authorized by those who confided in them; and 3. Government officials, provided that the judge is of the opinion, for reasons set out in the affidavit of the minister or deputy-minister to whom the witness is answerable, that the disclosure would be contrary to public order.18

13

Gill v Bouchard (1896) R.J. 5 Q.B., 138. “Out of the Shadows: The Civil Law Tradition in the Department of Justice Canada, 1868– 2000”, p. 3 (http://www.justice.gc.ca/eng/dept-min/pub/civil/civil.html, site last visited January, 14, 2010). 15 Quebec Code of Civil Procedure, 1867, article 275. 16 R v Hay (1860) 2 Foster & Finlason 4; 175 ER 933. 17 Gill v Bouchard (1896) R.J. 5 Q.B., 138. 18 Quebec, Code of Civil Procedure 1965, 13–14 Eliz II, Chap. 80, section 308. 14

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This provision made a distinction between the scope of legal professional privilege and religious confession privilege for the first time, but arguably religious confession privilege became the more generous privilege. Lawyers (and doctors and dentists) could waive their privilege if authorized to do so by the confider, but priests and ministers of religion could not. In 1975, Quebec’s statutory religious confession privilege was ‘promoted’ and became Article 8 of that province’s Charter of Rights and Freedoms.19 But the privilege was then modified to read: A member of the clergy or a priest shall not be compellable to give evidence as to a confession made to him or her in his or her professional capacity.20

Arguably this new language left more room for ungenerous judicial interpretation since the privilege had been narrowed by its specific reference to ‘confession’ which did not appear in the original incarnation of the privilege. However, even if the privilege had not been subsequently re-broadened, it seems unlikely that too much interpretive narrowing of the privilege would have survived appeal since the appellate court in Gill v Bouchard had quite bluntly rejected Lynch J’s suggestion that the judiciary could define the nature of what was a confessional communication. And of course, the Supreme Court of Canada’s later jurisprudence in R v Gruenke21 has since also recognised a broad and ecumenical case-by-case religious communications privilege at common law. The current statutory reiteration of the privilege in Quebec has again omitted reference to confession and has broadened the privilege even further. It reads: Every person has a right to non-disclosure of confidential information. No person bound to professional secrecy by law and no priest or other minister of religion may, even in judicial proceedings, disclose confidential information revealed to him by reason of his position or profession, unless he is authorized to do so by the person who confided such information to him or by an express provision of law.22

As in the Northern Territory in Australia, though no sanction is provided, a minister of religion is prohibited from breaching confidence without express authorisation from the confider or by statute. That provision is narrower than the mandatory privilege provided under the 1965 version of the Code, but in practice still leaves the definition of the confidence with the minister of religion. While one can imagine that a voir dire is still possible if a minister of

19

R.S.Q. c. C-12. Ibid, article 8. 21 Discussed again in more detail later in this chapter. 22 R.S.Q. Chapter C-12, article 9, updated to 1 December 2009 (http://www.cdpdj.qc.ca/en/ commun/docs/charter.pdf, last visited February 1, 2010). 20

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religion was uncertain whether he or she was the recipient of a confidence, it is submitted that Quebec’s current expression of religious communications privilege places the minister of religion’s assessment of what constitutes a religious confidence beyond the regular scrutiny of any court. It also avoids chilling the spiritual relationship in Canadian society as L’Heureux-Dubé and Gonthier JJ worried23 would be the consequence of leaving religious communications privilege to judicial discretion as is now the common law position by virtue of the majority judgement in R v Gruenke.24 Newfoundland – First Religious Confession Privilege Statute in the British Commonwealth Even though the tradition of recognising religious confession privilege in Quebec with its French genealogy25 arguably predates the first religious confession privilege in New York State in 1828,26 the first religious confession privilege statute in what became Canada – and indeed in the British Commonwealth, was passed in Newfoundland in 185627 before Newfoundland became a province of Canada.28 It then read: A Clergyman, or Priest, cannot be compelled as to any Confession made to him in his professional character29

and was modified only slightly in 186430 into the form which, save for contemporary gender correctness, endures to the present day. Newfoundland’s religious confession privilege now reads: A member of the clergy shall not be compellable to give evidence as to any confession made to him or her in his or her professional character.31

While this statement of privilege is markedly narrower than that which obtains in Quebec, it is submitted that the interpretation of this statute will likely be broadened in practice both by the advent of the Canadian Charter of Rights in 1982 and the Supreme Court of Canada’s development of the relevant common law in R v Gruenke in 1991.32 While the Newfoundland statute still refers

23

R v Gruenke [1991] 3 SCR 263, 311–312. R v Gruenke [1991] 3 SCR 263. 25 “Law of the Seal of Confession”, Catholic Encyclopedia (http://www.newadvent.org/cathen/ 13649b.htm, last visited January 14, 2010). See discussion of the French and Canadian law, the latter under the heading “British colonies”. 26 NY Rev. Stat. 1828. Pt. 3. c.7. tit. 3. § 72. 27 An Act to amend the Law of Evidence 1856, 19th Victoria, Cap. 15. 28 Newfoundland and Labrador did not become the tenth province of Canada until 1949 (http://www.heritage.nf.ca/law/default.html, last visited January 14, 2010). 29 An Act to amend the Law of Evidence 1856, 19th Victoria, Cap. 15, section VI. 30 An Act to amend and consolidate the Statute Law of Evidence 1864, 27th Victoria, Cap. 11, section XI. 31 RSNL 1990, Chapter E – 16, section 8. 32 R v Gruenke [1991] 3 SCR 263. 24

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only to the protection of ‘confession’, it seems unlikely that a less than ecumenical reading of that provision would now survive appellate scrutiny. Hence the word ‘confession’ will likely be read to mean that ‘confidential religious communications’ are protected in Newfoundland. The reasons for this more generous interpretation of the word confession in Newfoundland will appear in the discussion of the common law that follows. However, because the common law in relation to religious confession privilege has already been treated in chapter five,33 this mention of Canadian law will be a summary. For more detailed treatment, the reader is referred back to the discussion in chapter five. Common Law Religious Confession Privilege in Canada Slavutych v Baker34 was a case about the scope of confidentiality generally and the case did not have a religious dimension. In a unanimous judgement, the Supreme Court of Canada found that frank comments about a colleague provided by Professor Yar Slavutych in a confidential report, had been improperly used against him as part of the reason for his dismissal by the University of Alberta. The Court discussed the ‘four Wigmore canons of interpretation’; confirmed they should be applied as part of the Canadian common law where evidentiary privileges were concerned and affirmed in consequence that the confidential material relied on should not have been used as evidence in the dismissal proceedings. They stated: 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. 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.35 In Re Church of Scientology and the Queen (No 6),36 the Ontario Court of Appeal applied the Wigmore canons in a case of confidentiality with a religious dimension. The Church had appealed against a decision upholding a search warrant issued to allow the seizure of documents which might disclose offences by the Church and some of its officers. In particular the Church 33

Supra, pp. 142–148. Slavutych v Baker [1976] 1 SCR 254; (1975) 55 DLR (3d) 224. 35 Wigmore, JH, Evidence in trials at common law, Revised by John T McNaughton, Boston, Little Brown, 1961, Vol 8, p. 527, italics original. 36 Re Church of Scientology and the Queen (No 6) (1987) 31 CCC (3d) 449. 34

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claimed that some of the documents concerned were the subject of common law religious confession privilege. The Supreme Court of Ontario below had distinguished the Supreme Court of Canada’s decision in Slavutych v Baker and held that the Wigmore canons did not apply where religious confession privilege was asserted. Affirming that religious confession privilege should be recognised at common law, the Justices of the Ontario Court of Appeal said: We agree with the Crown that … there is no recognized class privilege accorded to the priest-and-penitent relationship … We cannot agree, however, that it is too late to expand the modern law of privilege. In the light of the constitutional protection given by the Charter and having regard to the expansion of the law of privilege under the general principles enunciated by Dean Wigmore and accepted by the Supreme Court of Canada in Slavutych v Baker, … we are satisfied that our courts will be encouraged to recognize the propriety of a priest-and-penitent privilege, if not as a class, at least on a case-by-case basis.37

This view that religious confession privilege should be affirmed on a ‘caseby-case basis’, was emphatically confirmed in R v Gruenke38 which has become the leading case in Canada, if not in the British Commonwealth where religious confession privilege at common law is concerned. Lamer CJ for the majority39 stated: In Re Church of Scientology and The Queen (No. 6), supra, the Ontario Court of Appeal recognized the existence of a “priest and penitent” privilege determined on a case-by-case basis, having regard to the Wigmore criteria. This approach is consistent with the approach taken by this Court in Slavutych v. Baker, supra, and is, in my view, consistent with a principled approach to the question which properly takes into account the particular circumstances of each case. This is not to say that the Wigmore criteria are now “carved in stone”, but rather that these considerations provide a general framework within which policy considerations and the requirements of fact-finding can be weighed and balanced on the basis of their relative importance in the particular case before the court. Nor does this preclude the identification of a new class on a principled basis.40

The majority considered that a case-by-case privilege was sufficient to recognize the guarantees of freedom of religion mandated by the Canadian Charter of Rights and Freedoms41 while at the same time giving due deference to the 37 Ibid, p. 541. As noted supra at p. 199, these comments were obiter since the appeals against the search warrants at issue were all dismissed on other grounds. 38 R v Gruenke [1991] 3 SCR 263. 39 Lamer CJ and La Forest, Sopinka, Cory, McLachlin, Stevenson and Iacobucci JJ. 40 Ibid, p. 290. 41 Ibid, pp. 289–290 noting in particular the statement of the majority of the Supreme Court of Canada in R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (S.C.C.), [1985] 1 S.C.R. 295 when they adopted the following words:

A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct. A free society is one which aims at

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long established principle that evidentiary privileges ought to be narrowly construed.42 The need to ensure the preservation and the affirmation of Canada as a multi-cultural, multi-denominational society, did not require the Supreme Court to recognize or create a new class of privilege. “[C]ase-by-case analysis w[ould still] allow courts to determine whether, in the particular circumstances, the individual’s freedom of religion will be imperilled by the admission of the evidence.”43 Adele Gruenke had unsuccessfully appealed her first degree murder conviction to the Manitoba Court of Appeal. When unsuccessful, she obtained leave to further appeal to the Supreme Court of Canada on the basis that either her communications with Pastor Thiessen and Ms Frovich from the Victorious Faith Centre were “protected by common law privilege, or alternatively, were protected confidential communications, and therefore inadmissible, under the common law and s 2(a) of the Canadian Charter of Rights and Freedoms”.44 Because Adele Gruenke’s communications with the clergy from her church did not originate in an expectation that they would be kept confidential,45 “[t] he communications in question d[id] not satisfy the first Wigmore criterion and their admission into evidence d[id] not infringe Ms. Gruenke’s freedom of religion”.46 L’Heureux-Dubé and Gonthier JJ in the minority believed that the court should have recognised religious confession privilege as a new category of privilege so as to avoid the risk that “the palpable need for evidence in the individual case”47 would outweigh Canadian society’s “more intangible and long term interests”48 in “the creation and development of spiritual relationships”.49 They noted that when Wigmore propounded his four canons of interpretation he had concluded that “[the pastor’s] privilege has adequate grounds for recognition”50 and they opined that “[a]n ad hoc approach to privilege may overshadow the long-term interest which the recognition of a religious privilege seeks to preserve”.51 While Wigmore contemplated the balancing of

equality with respect to the enjoyment of fundamental freedoms and I say this without any reliance upon s. 15 of the Charter (ibid, p. 336). 42 R v Gruenke [1991] 3 SCR 263, 288. 43 Ibid, p. 290. 44 Ibid, p. 264. 45 Ibid, p. 292. 46 Ibid, pp. 292–293. 47 Ibid, p. 311 citing Mitchell, MH, “Must Clergy Tell? Child Abuse Reporting Requirements Versus the Clergy Privilege and Free Exercise of Religion” (1987) 71 Minn L Rev 723, 767–768. 48 Ibid, p. 311. 49 Idem. 50 Ibid, p. 310 citing Wigmore, Evidence in Trials at Common Law, McNaughton Revision, vol. 8, p. 878. 51 Ibid, p. 310.

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interests, he contemplated balancing “society’s interest in the clergy-confider relationship against society’s interest in access to full information in every litigation”,52 not a balancing exercise in individual cases where specific litigant interests in case outcomes could distort society’s long-term interest in a predictable and principled privilege.53 For these two minority judges, the recognition of a “pastor-penitent category of privilege”,54 was more consistent with society’s interest in the promotion of religious communications,55 freedom of religion,56 the individual’s interest in the dignity of privacy for his most intimate relationships,57 “the spirit of the Charter and the goal of certainty of the law”58 than any kind of discretionary judicial analysis. They summarised: If our society truly wishes to encourage the creation and development of spiritual relationships, individuals must have a certain amount of confidence that their religious confessions, given in confidence and for spiritual relief, will not be disclosed. Not knowing in advance whether his or her confession will be afforded protection, a penitent may not confess, or may not confess as freely as he or she otherwise would. Both the number of confessions and their quality will be affected…The special relationship between clergy and parishioners may not develop, resulting in a chilling effect on the spiritual relationship within our society. The lack of a recognized category also has ramifications for freedom of religion. Concerns about certainty apply as much to the development of specific religions as to spiritual practices in general.59

It remains to be seen whether this minority judgement will resonate with a differently constituted Supreme Court of Canada in the future. One senses the minority disappointment that a judicial bias in favour of knowing all the relevant evidence, should have seen this opportunity for a more principled development of the relevant law go begging. Still, the Canadian common law now clearly recognises the existence of religious confession privilege at common law. What seems certain is that confessions in churches with a developed confessional ritual and a well established expectation of privacy, will be protected. In churches where confession is less formal, the result of judicial consideration of privilege claims is less clear. Whether future Canadian courts will see this difference as a form of distinction or discrimination between religious practices impermissible under the Charter will have to await further cases.

52 53 54 55 56 57 58 59

Ibid, p. 311 citing Mitchell, op cit, pp. 767–768. Ibid, p. 311 Idem. Ibid, pp. 297–300. Ibid, pp. 300–302. Ibid, pp. 302–303. Ibid, p. 311. Ibid, pp. 311–312.

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New Zealand was the second jurisdiction in the British Commonwealth to pass a religious confession privilege statute.60 Coming as it did in 1885,61 only four years after Sir George Jessel MR’s obiter statements in Wheeler v Le Marchant62 to effect that there was no religious confession privilege at common law, section 7 of the Evidence Further Amendment Act 1885 reads like a legislative response to correct an error in much the same way as the first religious confession privilege statute in New York in 182863 is said to have been passed to correct the error64 in The People v Christian Smith65 in 1817. But the Hansard reports of the parliamentary debates in connection with passage of the 1885 statute do not shed light on this possibility. But thereafter and until 1983 when the New Zealand Court of Appeal considered the meaning of section 31 of the Evidence Amendment Act 1980, there is no reported case which has considered or interpreted the statute though it has been amended three times since66 and was completely rewritten as a part of the completely new Evidence Act passed in 2006. The 1885 statute followed the intent of the original New York statute by denying that a clergyman could waive religious confession privilege and testify in any proceedings, but it was cumbersome. It read: 60 Newfoundland was the first in 1856 (An Act to Amend the Law of Evidence passed 12th May 1856 (19th Victoria, Cap. 15, section 6). 61 The first New Zealand religious confession privilege was enacted in the Evidence Further Amendment Act 1885, s 7 (49 Vict No 15). 62 Wheeler v LeMarchant (1881) 17 Ch D 675. 63 Revised Statutes of N.Y. (1828), Pt. 3. c.7.tit.3 §72. 64 “Privileged Communications to Clergymen”, The Catholic Lawyer 1 (1955) 198, 213. Walter J. Walsh however says that this view is an error. He says “the New York evidentiary revisers’… under[stood] that in Smith, Judge Van Ness had approved the priest-penitent privileges announced in Philips” and simply sought to give the Philips rule “the sanction of legislative authority” (“The Priest-Penitent Privilege: An Hibernocentric Essay in Postcolonial Jurisprudence”, Indiana Law Journal 80 (2005) 1037, 1055–1056 quoting in part Duer J, Butler, Benjamin F., and Spencer, John C., The Revised Statute of the State of New York (1828) ). 65 The People v Smith, 2 City Hall Recorder (Rogers) 77 (Richmond County Court 1817). Note however, that the judge admitted the testimony of the clergyman because he had no objection to providing the relevant evidence. Thus, if the New York statute was passed to correct the error of this trial judge, his error was in holding that a clergyman could waive a claim of privilege by a parishioner who had made confession. The 1828 New York statute stated that “[n]o minister of the gospel, or priest of any denomination whatsoever, shall be allowed to disclose any confessions made to him in his professional character” confirming that if religious confession privilege could be waived, it could only be waived by the parishioner. It is further noteworthy that the Smith jury acquitted the accused notwithstanding admission of the clergyman’s testimony, despite the confessional evidence to effect that the accused had committed the murder. 66 The Evidence Amendment Act 1980, s 31. The first New Zealand religious confession privilege was enacted in the Evidence Further Amendment Act 1885, s 7 (49 Vict. No. 15). This statutory statement of the privilege was broadened 10 years later in the Evidence Further Amendment Act 1895, s 9(1) (59 Vict. No.10) and then restated and further adjusted in section 8 of the Evidence Act 1908.

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7. The following confessions and communications shall be privileged, and shall not be admissible in evidence in any civil or criminal proceedings, except with the express consent of the person alleged to have made such confession or communication:(a) All confessions made to a minister of any religion or priest of any denomination whatsoever, in his professional character, in the course of discipline enjoined by the law or practice of such denomination, or under sanction thereof.

The 1895 amendment simplified the expression of the privilege considerably and made the privilege much more ecumenical by the removal of the original requirement that a confession needed to have been made as a part of the established discipline of an established church. The restated and broadened privilege read: 9.(1.) No minister shall, without the consent of the person alleged to have made a confession, divulge in any proceeding any confession made to him in his professional character.

Section 8 of the Evidence Act of 1908 which restated the New Zealand evidence code completely, changed the way the privilege was expressed yet again, but only to state it affirmatively. This time the privilege was stated as follows: 8. Communications to clergymen…. – (1) A minister shall not divulge in any proceeding any confession made to him in his professional character, except with the consent of the person who made such confession.

The only change made by the Evidence Amendment Act 1980, was to substitute the word “disclose” for the word “divulge” which had endured since 1895. And it appears that the reason for this change was simply to keep the expression consistent with the rest of the amendment which referred to ‘disclosures’ of evidence as a matter of style which again makes it difficult to understand why there was a need for this amendment at all. But the Evidence Act 2006, moved in a completely new direction. It created a broad and unarguably ecumenical privilege and states the current law thus: 58 Privilege for communications with ministers of religion (1) A person has a privilege in respect of any communication between that person and a minister of religion if the communication was— (a) made in confidence to or by the minister in the minister’s capacity as a minister of religion; and (b) made for the purpose of the person obtaining or receiving from the minister religious or spiritual advice, benefit, or comfort. (2) A person is a minister of religion for the purposes of this section if the person has a status within a church or other religious or spiritual community that requires or calls for that person—

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Chapter Ten (a) to receive confidential communications of the kind described in subsection (1); and (b) to respond with religious or spiritual advice, benefit, or comfort.

The privilege has thus been recast as a religious communications privilege rather than a religious confession privilege, and there is no residual suggestion that a person must be an established member of a particular religious denomination or subject to its discipline to have claim to the privilege. There is real recognition of theological and practical religious difference. The reference to the minister’s professional character is gone so that religions with lay clergy will not have problems claiming the privilege for ministers who have not had training in a theological seminary. But there is also apparent recognition of the fact that the enduring reference to ‘confession’, was practically discriminatory since that formulation connoted a formal religious observance missing in many modern non-traditional churches. But it remains to be seen whether the new expression is broad enough to protect the kinds of guidance which can be sought in non-Christian religious and spiritual communities. While such broad ecumenical intent is apparent, it may be difficult for courts to accept that the privilege extends to protect communications without the traditional penitential character which is familiar in Christianity. The courts are still allowed significant interpretive leeway. They retain the right to determine, according to the statutory formula, whether the person who received the arguably privileged communication was a minister according to the statutory definition and whether what that person received was a privileged communication within the meaning of the statute. That judicial interpretive scope arguably stands in contrast to the scope which is allowed to Australian judges under the prevailing expression of the privilege in that country. For while the idea of ‘confession’ remains in section 127 of Commonwealth Evidence Act, it appears that the legislatures there intended to leave the question of whether what was received amounted to a confession to the member of the clergy who received it, out of possible respect to the idea that churches have autonomy over the interpretation of their own religious doctrines and practices. Specifically, the prevailing Australian privilege relevantly states that “[a] person who is or was a member of the clergy or any church or religious denomination is entitled to refuse to divulge that a religious confession was made, or the contents of a religious confession made, to the person when a member of the clergy”. While those courts have interpretive jurisdiction over whether the person receiving the ‘communication’ was a member of the clergy, it is arguable that they are foreclosed from conducting any inquiry to determine for themselves whether what was communicated was a confession within the meaning of the section or not. While the New Zealand provision does not go that far, it is doubtful given the broad ecumenical policy which clearly lies behind this most recent expression of the privilege in New Zealand law, that any New Zealand court would want to intrude into such issues either since

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they appear to belong within the autonomy of the ‘religious or spiritual group’ concerned. For the older idea that the penitent must be seeking absolution to assert a valid claim to a religious confession privilege, does not comport with the language of section 58(1)(b) of the 2006 Act which requires only that the person communicating with a minister of religion be seeking “religious or spiritual advice, benefit or comfort”. The history of religious confession privilege in New Zealand may thus be seen as a continuing search for a truly ecumenical religious communications privilege. That the first statute was passed so soon after Sir George Jessel MR denied the privilege existed at common law, seems socially consistent with New Zealand’s habit of being at or near the forefront of social change. The English courts may not have wished to recognise religious confession as a fundamental part of the free exercise of religion, but that idea resonated with the New Zealand legislature as it seems to have done nearby in Australia less than twenty years later when the 1901 constitution denied the new Commonwealth the power to pass any law which circumscribed the free exercise of religion. The removal of the requirement that the privilege was only available if the confession was made as part of the established discipline of a church in 1895, underscores that trend. But the wish to make the privilege a broad ecumenical privilege is most evident in the one New Zealand case that reviewed the scope of the privilege closely.67 That the decision was handed down by the Court of Appeal with Sir Robin Cooke as he then was presiding, is the more convincing of the New Zealand direction. Peter Howse had been convicted of murder by a jury. Though the jury had taken more than nine hours to reach their verdict, the Court of Appeal noted that “the jury’s verdict seemed inevitable”68 because “[t]here was a very strong case against him”.69 “The sole ground”70 of appeal was that the evidence of Pastor John Walton should not have been admitted at trial. The appellant relied on section 31 of the Evidence Amendment Act (No 2) 1980 which has been referred to above and section 35 of the same act which gave the trial court a discretion to excuse a witness from giving confidential evidence if the public interest in preserving the underlying confidence outweighed the public interest in having the relevant evidence disclosed to the court. Cooke J explained that section 35 had no application in the current case because the minister did not wish to be excused from giving evidence and had made no application to be so excused. Section 35 did not authorise a direction to such a witness that he refrain from disclosure, unlike section 31 where a religious

67 68 69 70

R v Howse [1983] NZLR 246. Ibid, p. 247. Idem. Idem.

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confession was at issue.71 However, the correct interpretation of section 31 required more elaboration. Cooke J traced the evolution of religious confession privilege in New Zealand and noted that the original expression of the privilege in 1885 was narrower72 than that which had essentially applied since 1895. He explained that the removal of the 1885 requirement that a confession “not merely be to [a] minister…in his professional character but also ‘in the course of discipline enjoined by the law or practice of such denomination, or under sanction thereof ’ ”73 “indicate[d] that there does not have to be a formal confession made as a matter of religious duty or ritual or established custom”.74 “The change made in 1895 amount to a legislative intimation that [the privilege] should be liberally construed”.75 “But…the section still refer[red] to a confession in the religious sense”.76 Since the word ‘confession’ was used in the context of communication with a minister in professional character, it was clear that that the confessions to be protected by the section were not simply admissions of guilt. To be protected by the section as worded since 1895, the confession must have been made for a religious purpose. Though it was common ground that “there could be a confession to a minister in his professional character although there had been no prior association at all with the church or the minister on the part of the person confessing”,77 the appellant in this case “did not really claim in any way that he was motivated by religious belief ”.78 He had not been able to explain why he had twice called Pastor Walton on the night of the murder and the Court of Appeal speculated Perhaps that he had hoped that the pastor’s prayers would keep the girl from dying. Whether or not that was in his mind, anything that he said on the telephone about the crime itself appears to have been not to acknowledge sin but rather to inform the minister of what had happened.79

Accordingly, Greig J was correct to have ruled in the High Court that a confession within the meaning of section 31 require[d] that the person making the confession is seeking some spiritual response for himself…[which meant] an avowal of penitence and a request for forgiveness or absolution…at the least there must be a request for spiritual help for the person making the confession. In this case the only request made of Mr Walton by the accused was that he pray for the deceased….There [was] no

71 72 73 74 75 76 77 78 79

Ibid, p. 251. Ibid, p. 250. Idem. Idem. Idem. Idem. Ibid, p. 248. Ibid, p. 251. Idem.

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suggestion…even by the accused that there was any penitence or that he was making any request for himself in any spiritual way.80

It seems that the result would have been the same even under the new and broadened religious communication privilege set out in section 58 of the Evidence Act 2006. That is because that legislation still imposes the requirement that the communication must have been made by a person “for the purpose of th[at] person obtaining or receiving from the minister religious or spiritual advice, benefit, or comfort”. Arguably the only change made to Sir Robin Cooke’s interpretation of the privilege which had endured in its 1895 formulation through until 2006 was the substitution of the words “religious communication” in the place of the concept of confession, to remove the idea that a simple admission to a minister for no personal religious purpose could obtain benefit of privilege as Howse had argued in 1983. Nonetheless, the New Zealand statutory expression of the privilege is arguably the most lucid and unambiguous that exists anywhere in the Anglo-American common law world. While the evidence that might be provided by a New Zealand minister of religion may still be subjected to a voir dire – which option is arguably foreclosed to Australian courts interpreting the privilege expressed in section 127 of the Commonwealth Evidence Act 1995 – a New Zealand minister of religion is prevented from giving evidence of a communication in which a penitent individual sought personal spiritual response no matter whether that individual had ever consulted the minister before. The 2006 restatement of the New Zealand privilege adds one additional protection that may have been doubtful under the 1895 formulation. And that is the status of communications between ministers of religion about confessions they may have received from their parishioners. It is questionable whether a junior minister seeking counsel from a superior would have been able to claim privilege under the 1895 formulation. But the 2006 formulation puts the matter beyond doubt when it states that communications “made in confidence to or by the minister in the minister’s capacity as a minister of religion” benefit by the privilege. It is interesting to compare the state of religious confession privilege in Australia, Canada and New Zealand. The comparison is easier between Canada and New Zealand because both countries have reported an appellate case since 1980 that analysed the privilege. The simplest way to make a comparison between Canada and New Zealand may thus be to ask whether Adele Gruenke’s ‘confession’ to Pastor Thiessen and Ms Frovich would have been admissible in New Zealand, and whether Peter Howse’s communication with Pastor Walton would have been privileged in Canada. While both the majority and the minority of the Supreme Court of Canada which heard the appeal in R v Gruenke ultimately agreed that the 80

Ibid, pp. 248–249.

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communications at issue had not been made with any expectation of confidentiality,81 they did not agree as to whether they had been made for spiritual purpose or not. Lamer CJ for the majority stated The testimony of Pastor Thiessen and Janine Frovich indicates that they were unclear as to whether they were expected to keep confidential what Ms. Gruenke had told them about her involvement in the murder….Ms. Frovich initiated the meeting because [Ms. Gruenke] had already made up her mind to turn herself into the police and “take the blame. In my view the Court of Appeal accurately described these communications as being made more to relieve Ms. Gruenke’s emotional stress than for a religious or spiritual purpose. I note that my view is based on the parties’ statements and behaviour in relation to the communication and not on the lack of a formal practice of “confession” in the Victorious Faith Centre Church. While the existence of a formal practice of “confession” may well be a strong indication that the parties expected the communication to be confidential, the lack of such a formal practice is not, in and of itself, determinative.82

L’Heureux-Dubé J for the minority did not agree with the Chief Justice that there was no spiritual purpose in the communication though she agreed with him that the appeal should be dismissed since “the communications did not originate in the confidence that they would not be disclosed”.83 Specifically, she said The Chief Justice’s recitation of the testimony reveals that the applicant approached the communications in question to determine whether “…if someone had committed murder, could God forgive that…” This would support the appellant’s view that the communications were, at least in part, for a spiritual purpose.84

But again, this was not conclusive and the minority was agreed “that the absence of a church practice of confession of sin is not….determinative of the question of confidentiality”.85 Since Cooke J decided that Peter Howse’s communication with Pastor Walton was not protected by New Zealand’s 1980 statutory iteration of religious confession privilege because Peter Howse was not “seeking some spiritual response for himself ”,86 it is reasonable to conclude that the New Zealand and Canadian courts were ad idem at least until the Evidence Act 2006 was passed. Would that new legislation have made any difference? While the new incarnation of the privilege is even more clear that the privilege is intended to protect communications made for a religious or spir-

81

R v Gruenke [1991] 3 SCR 263, 292 and 316. Ibid, p. 292. 83 Ibid, p. 316. 84 Idem. 85 Idem. 86 R v Howse [1983] NZLR 246, 249. Note these words originated with Greig J in the High Court at first instance. However Cooke J quoted them with approval (ibid, p. 251). 82

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itual purpose,87 the requirement of an expectation of confidentiality which ultimately saw Adele Gruenke lose her appeal remains. Accordingly, her religious communication would still not have been protected in New Zealand after 2006. Similarly, since Peter Howse did not seek any spiritual response and had no expectation that his communication with Pastor Walton would be confidential, his claim of privilege would not have been upheld in Canada either. None the less, it is fair to conclude that the appellate courts considering both the Howse and Gruenke decisions, would have found it much easier to decide that a religious confession privilege applied in a case where the church concerned had a well established confession ritual. For counsel for the penitent person making a confession according to an established ritual would easily be able to demonstrate that the confession was made for a religious or spiritual purpose; that it was made with an expectation of confidentiality and that the person receiving the confession was in the practice of receiving such confidential communications. Even before the enactment of the new 2006 statute, the New Zealand position was the simplest since it has only ever had one privilege which protects confidential religious communications. In Canada there are three different laws about the privilege attaching to confidential religious communications – the statutory provisions operative in Newfoundland and Quebec, and the common law applicable through the rest of that nation set out by the Supreme Court of Canada in the Gruenke case. This relative clarity stands in contrast to the position in Australia where there has been no decision from the highest court articulating the existence of religious confession privilege at common law. For in the states of Western Australia, South Australia and Queensland where there is no religious confession privilege statute, the courts still have to work out whether there is a privilege at all. But even in Canada and New Zealand there still remains room for judicial interpretation and possible uncertainty. For while the Supreme Court of Canada held that Adele Gruenke’s claim of privilege for her communication with her pastors failed because she did not expect them to keep her communication confidential, that interpretation begs the question of why she sought their counsel at all. The court effectively speculated from the transcript that the claim of privilege was an afterthought prompted by defence counsel, and that Gruenke’s wish to unburden herself did not require the view that she expected confidentiality. That interpretation seems ungenerous. It may be noted that Cooke J’s view that Peter Howse was not seeking any spiritual response when he called Pastor Walton is similarly ungenerous. Why then did he make the calls? Save for his capacity as a minister of religion, the two were

87 Section 58(1)(b) requires that to be protected, religious communications must be “made for the purpose of the person obtaining or receiving from the minister religious or spiritual advice, benefit, or comfort.”

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strangers. While it would still be open for Cooke J to find that Peter Howse sought no spiritual response at all from Pastor Walton under the new 2006 statute in New Zealand, counsel asserting privilege for such communications will more easily be able to assert the fact of the communication as at least partial evidence of a wish for a spiritual response since it is difficult to imagine any other purpose for such communications. Conclusion New Zealand’s protection of religious confession privilege is the strongest in the common law world. It not only has the most modern and ecumenical statute, but the 2006 statute expresses a broad communications privilege apparently lest a reference to confession mislead a court into thinking that only confidential religious communications in churches with established confidentiality practices were intended to be protected. Confidential religious communications are not as well protected by evidential privilege in Canada. Certainly the Quebec statute provides equivalent protection to that which obtains in New Zealand under the 2006 statute, but the Newfoundland statute still only privileges “confessions” and is thus practically focused on protecting the confidences of traditional Christianity. The common law privilege set out by the majority in the Gruenke case, while not designed to protect only mainstream Christian confessions, still seems weighted to favour confidences in churches with an established religious confession practice. All of this bears out the minority concern in R v Gruenke that a discretionary “case-by-case” approach to the determination of religious confession privilege claims at common law, is likely to unfairly discriminate against minority religious practice. That is ironic since the majority expressly stated its intent to recognise diverse religious practice in accordance with the multicultural principles expressed in Canada’s Charter of Rights and Freedoms. It would thus seem that Canada would do well to consider the enactment of a new federal confidential religious communications statute along the lines of those passed in New Zealand and by the Australian Commonwealth.

CHAPTER ELEVEN

RELIGIOUS CONFESSION PRIVILEGE IN SOUTH AFRICA Introduction The law concerning religious confession privilege in South Africa, falls into two distinct periods – the period before the 1996 Constitution, and the period after that Constitution. That is because section 14 of the Constitution entrenched a right of privacy into South African jurisprudence which protects the “inner sanctum”1 of human identity which had not previously existed in South African positive law and certainly not in formal constitutional law. That explanation of the right of privacy as existing to protect the inner core of human dignity of every natural person in the South Africa, resonates with the idea of the forum internum which has developed significant jurisprudence in connection with freedom of thought, belief and religion in international human rights instruments.2 And perhaps it is not surprising that the right to privacy in the South African constitution in section 14 is followed by South Africa’s expression of freedom of religion, belief and opinion in section 15. But it was otherwise before the apartheid regime was overturned in 1994. For though there was recognition of a common law religious confession privilege in the Wissekerke case in 1922,3 that ‘error’ was unceremoniously expunged by the Eastern Cape Court of Appeal in 1976.4 In this chapter, I will thus analyse the ebbs and flow of respect for religious confession privilege before the 1996 constitution and I will suggest the likely outcome of a religious confession privilege case post 2010 – since there have not been any cases that have fairly considered the privilege since the new Constitution took effect.5

1

Bernstein v Bester NO 1996 (2) SA 751 (CC), para 67 per Ackermann J. For example, see discussion of the forum internum in Evans, C., Freedom of Religion under the European Convention of Human Rights, Oxford University Press, 2001, pp. 74–76, 107. See also discussion supra pp. 226–229. 3 Wissekerke v Wissekerke & Wissekerke (1923) P.H. F5. 4 Smit v Van Niekerk, (1976) (4) SA 293 (A). 5 Though S v Bierman (2002) 5 SA 243 (CC) did reference religious confession privilege issues, the case was decided on other grounds primarily because the appellant was estopped from raising the privilege issue at final appeal since she had not raised it before the Supreme Court of Appeal. The Constitutional Court also noted that the decision would not be overturned on that ground in any event, since the conviction rested on more evidence than that actually provided by the Minister of Religion. 2

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The most authoritative place for this story to begin, is with the decision of the Appellate Division of the Supreme Court in Smit v Van Niekerk6 in 1976. Smit was a minister of religion who had communicated with a Mrs Geldenhuys whom the police suspected of attempted murder. The Reverend Smit convinced Mrs Geldenhuys to give herself up to the police, but he would not answer police questions about his own communications with the woman. When the Reverend Smit was summoned before a magistrate to be compelled to give evidence, he declined to do so on the grounds that he was entitled to counsel and to maintain his silence because he was a minister of religion. Though the Reverend was represented before the magistrate, the magistrate denied he was entitled to representation or to religious confession privilege, but agreed with his lawyer that the issues of representation and privilege could be heard before the Eastern Cape Division of the Supreme Court. Cloete J in that court agreed that representation was allowed but privilege was not. The matter was further adjourned so that the privilege issue could be decided by the Appellate Division. Rumpff CJ gave judgment for the five members of that Court. There was discussion as to whether the Criminal Procedure Act 1955 excluded a religious confession privilege by not mentioning it all, or whether there was a judicial discretion to allow same on grounds of public policy. But Rumpff CJ said it really did not matter which way the privilege question was reviewed since neither path would concede a privilege. The English law which would govern the exercise of the Court’s discretion did not acknowledge a religious confession privilege, and no such privilege was appropriate for public policy reasons in South Africa. He said: Therefore the first point is to answer the question whether or not the English law acknowledges the clergyman’s right to silence. In spite of the fact that the English ruling on this subject was denied in obiter dicta, and that there was no specific ruling by the Court of Appeal or House of Lords, and in spite of the fact that many writers acknowledge this right to silence and feel that it should be upheld, the majority of the authorities in the English legal system feel that the right to silence of clergymen cannot be acknowledged. The reason for this seems to stem from the time of King Henry VIII when in 1534 he put a stop to the rule of the Roman-Catholic Church and with time the privilege of clergymen was abolished….For our purposes it is unnecessary to refer to all the English rulings. In the 22nd edition of Harris, Criminal Law, it states that privilege ‘extends only to legal advisers including their clerks. It does not apply to communications to medical advisers or clergymen.’ This opinion is also upheld by the Law Reform Committee in its 16th report (‘Privilege in Criminal Proceedings’) and the Criminal Law Revision Committee in its 11th report (‘Evidence (General)’).7

6 7

Smith v Van Niekerk (1976) 4 SA 293 (A). Smith v Van Niekerk (1976) 4 SA 293 (A), 302. Original judgment in Afrikaans.

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After discussing whether it was the English or South African public policy as at 30 May 1961 that applied under the South African Criminal Procedure Act 1955, he disposed of the public policy point as follows: Apart from legislation in the colonies before Independence, the Legislator in the Criminal Procedure Act 1917, clearly acknowledges only the right to silence of legal advisors but not of doctors or clergymen. I have no doubt that if public policy, required the right to silence of a clergyman or a doctor, that the Legislator would have included such a law in the Criminal Procedure Act of 1955….If public policy, on historical grounds, required a confidential relationship, like that of a clergyman with his congregation should be protected by privilege, it would mean that today this privilege would have to extended to not only ChristianProtestant congregations but also to bishops and priests of the Roman Catholic church and also to rabbis and officials of the Jewish religion, the Islamic faith and Hinduism. A position of trust that comes about via religion cannot be limited to Christian faiths, when there are large numbers of the population that have other beliefs. The problem becomes even bigger because in our time there are also relationships of trust with other professionals like patients with their psychiatrists etc or between a social worker and those that she visits. It would then be logical to extend privilege to all these relationships. It is my opinion that public policy has not required the right to silence of clergymen in the past or in the present and therefore it is not acknowledged in our Criminal Procedure Act. The appeal is therefore denied.8

Professor Van der Vyver9 agreed with the Appellate Division’s decision in a learned article the following year.10 But he discussed the precedents and the policy considerations then applicable in much greater detail than was set out in the Appellate Division’s judgment. His essential conclusions were that no one could “construct a privilege from disclosing information entrusted to a clergyman on the ground of public policy or public interest as envisaged in section 202 of the [Criminal Procedure] Act”;11 that “the judgment of Jeppe J in Wissekerke v Wissekerke 1923 1 PH F5 …[upholding religious confession privilege] must be taken to have been wrongly decided”;12 that English law “does not provide for a priest-penitent privilege”;13 that priest-penitent

8

Ibid, p. 303. Professor Van der Vyver was Professor of Law and Head of the Department of Legal Philosophy, Potchefstroom University for Christian Higher Education (1970–1978). Dean of the Faculty of Law, Potchefstroom University for Christian Higher Education (1972–1974). He has subsequently held office as a Professor of Law at the University of the Witwatersrand, Johannesburg (1979–1995) and as I.T. Cohen Professor of International Law and Human Rights, Emory University School of Law, Atlanta, Georgia (1995-) (http://cslr.law.emory.edu/fileadmin/ media/PDFs/CV_-_updated_2008/vyvercv.pdf, site last visited July 3, 2010). 10 “The Priest-Penitent Privilege”, (1977) THRHR 217, translation from the original Afrikaans provided to the writer by Vivienne Van As. 11 Idem. 12 Idem. 13 Idem. 9

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privilege exists in the United States only as the creation of statute;14 and that the “generous concession [of a priest-penitent privilege] to religion”15 cannot be justified since “[d]etecting crime and securing punishment for a criminal is a basic function of the state which derives from the very destiny of the state as the citadel of law and justice”.16 Several of Professor Van der Vyver’s conclusions can be set aside as incorrect given the detailed consideration those very issues have been given in earlier chapters in this book. It is simply not accurate to state, quoting short commentary statements, that English law does not acknowledge a priest-penitent privilege. Certainly England does not currently have a statutory religious confession privilege. But that is not what either Rumpff CJ or Professor Van der Vyver meant by their similarly dismissive conclusions. And it does not matter that either the English Law Reform Committee or the English Criminal Law Revision Committee have similarly stated that there is no such privilege at common law since the source material those Committees cited was the secondary and inaccurate interpretation of the primary case reports. They simply had not researched the matter properly. Professor Van der Vyver cites the English decisions in R v Sparks, R v Gilham, Normanshaw v Normanshaw and R v Hay, along with AG v Briant, R v Griffin, R v Radford, Du Barré v Livette. But when his analysis is reviewed more closely, and particularly his three categories of cases concerning the existence of religious confession privilege, it is evident that he also simply relied on the commentary of others instead of analysing the cases in detail himself. R v Gilham is the biggest giveaway, for as the reader will remember from the facts of the case set out in chapter one of this book,17 there was no confession to a clergyman, and certainly not to a priest as is Professor Van der Vyver’s expression.18 Rather it was ruled that the confessions there, perhaps prompted by a prison chaplain, but then made to various people including a Mayor, were admissible despite the defence allegation that all of those confessions were obtained under spiritual duress. Nor does Professor Van der Vyver acknowledge that the ruling by Buller J on circuit in The King v Sparkes, was disapproved by Chief Justice Kenyon the following year when it was cited to him in Du Barré v Livette. Professor Van der Vyver’s treatment of the United States’ common law is similarly incomplete. For though he states that religious confession privilege exists by virtue of legislative enactment in 47 states, he says that it is “generally accepted…that the common law, of Roman priest-penitent privilege in a religious context is not acknowledged”.19 Nowhere does he reference Mayor 14 15 16 17 18 19

Ibid, p. 225. Ibid, p. 218. Ibid, p. 217. Supra, chapter one pp. 18–20. Van der Vyver, op cit, p. 223. Ibid, p. 225.

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Clinton’s decision in The People v Phillips20 in 1813 where a common law religious confession privilege was upheld in New York State fifteen years before the first world’s first religious confession privilege was passed in that State. But more surprising still in 1977, is that he did not even mention the Federal decision21 in Mullen v US22 in 1958, which affirmed the existence of a religious confession privilege in US Federal common law. That decision in a jurisdiction which still does not have a religious confession privilege statute, is still good law to this day. But perhaps the most egregious omission of all is the failure by either the Appellate Division or Professor Van der Vyver to even acknowledge that there are good policy arguments that can be made in favour of religious confession privilege. That those policy reasons are considered compelling in many places is amply demonstrated by the fact that religious confession privilege statutes have been passed in many jurisdictions to put the issue beyond doubt in the face of persistent judicial and academic doubt of the existence of such privilege at common law. Those policy justifications are fully treated in chapter twelve infra. Perhaps these reasons were ignored during the 1970s because police and even extensive judicial support of apartheid policy required that all privileges be narrowly construed or denied.23 But it is still surprising that while both Rumpff CJ and Professor Van der Vyver quoted Wigmore when his reasoning suited their conclusions, they seem to have missed his insight that religious confession privilege “has adequate grounds for recognition”24 in common law – essentially because many communities believe that a confidential relationship between the clergy and penitents is a relation which ought to be sedulously fostered.25

20 The People v Phillips, as reported in “Privileged Communications to Clergymen”, The Catholic Lawyer 1 (1955) 198. 21 Court of Appeals for the District of Columbia. 22 Mullen v US (1959) 263 F 2d 275. 23 In a book written before the fall of Apartheid in South Africa, David Dyzenhaus wrote:

Steyn’s appointment as Chief Justice [in 1959] marked the start of what Christopher Forsyth describes as the court’s ‘cordial relationship with the executive authorities’. It also, as Forsyth notes, marked the start of a progressive increase in the proportion of appointments to the Appellate Division from the ranks of judges who had practised at the deeply conservative Bar in Pretoria or who had been civil servants there. (Dyzenhaus, D. Hard Cases in Wicked Legal Systems, Oxford, Clarendon Press, 1991, p. 51). Dyzenhaus also argued that there was a “legislative barrage which…[formed] a large part of the implementation of the racial policies of South Africa’s rulers, which makes it appropriate to describe South Africa’s legal system as wicked….These rulers wanted, and succeeded in securing, a judiciary more or less acquiescent in their scheme.” (Idem). 24 Wigmore, JH, Evidence in Trials at Common Law, Revised by John T McNaughton, Boston, Little Brown, 1961, Vol. 8 para 2295. 25 Wigmore, JH, Evidence in Trials at Common Law, Revised by John T McNaughton, Boston, Little Brown, 1961, Vol. 8 para 2285.

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What then was the law in South Africa before the new constitution was passed in 1996?26 Is Professor Van der Vyver correct that “[t]he judgment of Jeppe J in Wissekerke v Wissekerke [in 1923]…must be taken to have been wrongly decided”?27 Or does the fact of Rumpff CJ’s decision against the privilege in the Appellate Division in 1976, despite its manifest errors, correctly state the law which will guide the future though with adjustments to reflect contemporary constitutional considerations? South African commentators on evidence law are hard pressed to do anything other than cite Rumpff CJ’s decision in Smit v Van Niekerk and dismiss Wissekerke v Wissekerke as wrongly decided.28 But was it wrongly decided? Does it make any difference that Wissekerke was a civil case that was unaffected by executive pressure on the judiciary to narrowly construe privilege?29 Was Jeppe J right to exercise his discretion and exclude the evidence of the clergyman in Wissekerke? Wissekerke was an adultery case in which the plaintiff husband called a minister of religion, the Reverend P., to testify about the contents of communications between the minister and the wife about their differences. The minister claimed that those communications were privileged and the Court ruled that he could properly refuse to disclose those communications as a minister of religion. While the case summary suggests the claim of privilege was upheld because of the claim of religious confession privilege, it is not clear whether the Court considered there was an established head of privilege for confidential religious communications with members of the clergy at common law, or whether this claim of privilege was upheld for some other reason – as for example, because there was a privilege protecting without prejudice communications which Denning J suggested applied to efforts to reconcile the parties to a marriage.30 However, even if it is accepted that Jeppe J found that the common law did provide a privilege that protected confidential communications with a 26

For the purposes of this summary of the law, I have not separately treated the law concerning religious confession privilege during the short period between 1994 when the Interim Constitution (Constitution of the Republic of South Africa, Act 200 of 1993) came into force and early 1997 when the Constitution of the Republic of South Africa, 1996 came into effect. 27 Van der Vyver, op cit, p. 217. 28 For example, in Volume 9 LawSA’s e-textbook on the Law of Evidence (LexisNexis, those authors state, “No privilege attaches to communications that have been made to a doctor, a clergyman, an accountant, a journalist, a banker (except in a limited way by virtue of statute), an insurer, or, for that matter, to anyone other than a lawyer” with the footnote ‘submission’ (footnote 8) that Wissekerke v C Wissekerke & L Wissekerke was wrongly decided. (LawSA, 9 Evidence, para 754). Schwikkard, PJ, Van Der Merwe SE, Collier DW, De Vos WL, St Q Skeen, A and Van Der Berg E, Principles of Evidence, 2nd ed., Lansdowne, JUTA Law, 2003 reprint write at para 10.4, that “[p]riests, insurers and accountants do not enjoy this privilege” though they add a footnote to Freedman who suggests “that the Constitution requires a broader recognition of the categories of privileged communications” (Freedman, W, “A privilege for members of the clergy: Smit v Van Niekerk reconsidered” (1997) SACJ 74). 29 See note 23 supra. 30 McTaggart v McTaggart [1949] Probate 94, 97–98.

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minister of religion in a civil case, it is by no means clear that the same rule should apply in a criminal case where completely different public interest considerations arise. While Jeppe J did not expressly state that his reasons for upholding the privilege in Wissekerke were premised in public interest, absent any clear citation of precedent, it is difficult to imagine any other grounds for his decision. To assess the convincing power that this decision might have in a criminal case, it is thus important to identify and weigh the public interests that Jeppe J had to weigh when he decided that the communication before him in Wissekerke was entitled to privilege. First, it was made with an expectation of confidentiality. Secondly, as Wigmore might have said, Jeppe J seems to have accepted that there was a societal interest in fostering religion in general and in protecting confidential communications with the clergy which might help members of the public successfully negotiate the more difficult and important decisions in their lives. If there were a confession somewhere in this communication, then it also seems implicit in his decision, that society at large had an interest in preserving the confidentiality of that confession so as not to fetter free exercise of religion in any way, nor to close off the opportunities for reform which were encouraged by the Christian doctrine of repentance. There is also Denning J’s statement that “the law favours reconciliation and that the court will not normally take upon itself a course which would be….prejudicial to its success”.31 What public interests favoured forced disclosure of the confidential communications in question? In this civil case, it is submitted there is only one public interest that favoured disclosure of the communication at issue, and that was the public interest in ensuring that the state’s court should have access to all the relevant evidence available. Such access theoretically ensures a safer and more credible judicial process which tends to uphold and strengthen the confidence of the public in that judicial system and process. That this public interest aligned with the husband’s personal and private interest in proving his assertion of adultery, was technically beside the point. Jeppe J’s decision to protect this communication as a matter of policy, suggests that he considered the public interests in protecting the confidence outweighed even the public interest in facilitating the administration of justice in this case. But in a criminal case, the public interest in facilitating the administration of justice is apt to weigh more heavily. That is because the additional public interest served by ensuring that people who commit crimes are taken off the streets and punished for their crimes must be factored in when the competing public interests are weighed. Professor Van der Vyver implies that since “[d]etecting crime and securing punishment for a criminal is a basic function of the state which

31

McTaggart v McTaggart [1949] Probate 94, 97–98.

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derives from the very destiny of the state as the citadel of law and justice”,32 that the public interest in the courts having all the relevant evidence will always trump competing public interests. But there are decisions from courts in many jurisdictions that cast doubt on that unqualified assertion.33 In the Wissekerke case, it is doubtful that Jeppe J would have considered that there was any public interest in shaming Mrs Wissekerke even if the communication at issue had included a confession of adultery. For though family law then still acknowledged that adultery was a valid reason for state sanctioned dissolution of a marriage with fault attaching, adultery was no longer a crime. And though Lord Edmund-Davies’ expansive remarks setting forth the principles upon which confidences in general might be respected in civil law cases34 have not been adopted as binding authority,35 his suggestion that balancing the public interests was the appropriate way to make this decision, has garnered some respect.36 If the state interest in facilitating the prosecution of criminal offences at all costs had not dictated the narrowing of all privilege during the apartheid era, would Jeppe J’s decision in Wissekerke have seeded more appellate court generosity when considering assertions of confidential religious communications privilege? More specifically, would the Wissekerke decision have been considered more persuasive in the Van Niekerk case if the apartheid policy had never been developed and respected as state policy by the judiciary? Would the decision have been different? Practically, a different outcome at law would not have made any difference since it is apparent that the Reverend Smit never broke Mrs Geldenhuys’ confidence anyway. But would Rumpff CJ and his brethren have accorded his request for privilege more respect as a matter of law absent apartheid policy? Since it is doubtful they would have interpreted the applicable English common law any differently, the absence of apartheid policy could only have

32

Ibid, p. 217. For example, in McGuinness v Attorney-General (Vic) (1940) 63 CLR 73, Dixon J acknowledged that though “an inflexible rule was established that no obligation of honour, no duties of non-disclosure arising from the nature of a pursuit or calling, could stand in the way of the imperative necessity of revealing the truth in the witness box”, there were a few relations “where paramount considerations of general policy appeared to require that there should be a special privilege, such as husband and wife, attorney and client, communications between jurors, the counsels of the Crown and State secrets, and by statute, physician and patient and priest and penitent” (ibid, pp. 102–103). While he thus indicated that he did not think such public policy considerations justified a court rather than a legislature in conceding a religious confession privilege, the Supreme Court of Canada in R v Gruenke [1991] 3 SCR 263 did not agree with him. And Irish Courts have come to similar conclusions (Cook v Carroll [1945] Ir. Rep. 515). 34 D v NSPCC [1978] AC 171, 242 et seq. 35 R v Young (1999) 46 NSWLR 681, 694 per Spigelman CJ. 36 For example, Geoghegan J in the Irish Supreme Court, Howlin v The Hon. Mr Justice Morris (2005) Irish Supreme Court, 121 & 139/04, http://www.courts.ie/judgments.nsf/Generic Print?OpenForm&id=0.8352830417726089, last viewed 2/06/2006. 33

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changed their view of the applicable public policy. In Smit v Van Niekerk, the police were investigating a charge of attempted murder. The public interests in favour of upholding the Reverend Smit’s claim of privilege were exactly the same public interests as convinced Jeppe J to recognise the claim of privilege in Wissekerke. But Jeppe J did not have to consider the public interest in detecting an attempted murderer as was the court’s concern in Smit v Van Niekerk. In the Gruenke case,37 the Supreme Court of Canada was considering a murder case and that court did suggest that they would have protected Adele Gruenke’s confidence in two members of the clergy if that communication had taken place with an expectation of confidentiality. Similarly, in R v Howse38 in the New Zealand Court of Appeal, the only reason why that court did not exclude Pastor Walton’s evidence was because there was no expectation of confidentiality when the communication occurred and that was more explicit since the Pastor had willingly testified. In Smit v Van Niekerk, the Appellate Division of the Supreme Court of South Africa was faced with a member of the clergy who was emphatic that the communication was intended to be confidential and he would not disclose it. While it is impossible to separate the Smit v Van Niekerk decision from its apartheid context, it seems fair to say that there is now an abundance of material which suggests a reconsideration of the decision is in order on grounds of both public policy and the applicable English common law. The Law After 1996 The difference after 1996, is of course, the advent of the new South African Constitution.39 But this difference cannot be understated, for while the preexisting common law has not been completely swept away, the new Constitution is, and was intended to be, utterly transformative of the law of South Africa.40 The new Constitution states the fundamental grundnorm against which all pre-existing law must be measured. Where the pre-existing law is not consistent with the new Constitution, it is the pre-existing law that will give way and not the Constitution. Two of the provisions of the new Constitution are relevant. Section 14 reads: Everyone has the right to privacy, which includes the right not to have a. their person or home searched; b. their property searched;

37

R v Gruenke [1991] 3 SCR 263. R v Howse [1983] NZLR 246. 39 Constitution of the Republic of South Africa, 1996. 40 Bato Star Fishing (Pty) Ltd v The Minister of Environmental Affairs and Tourism and others 2004 (4) SA 490 (CC) per O’Regan J at para 22 and per Ngcobo J at para 72. 38

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c. their possessions seized, or d. the privacy of their communications infringed.41 The first paragraph of section 15 continues: 1. Everyone has the right to freedom of conscience, religion, thought, belief and opinion.42 The authors of the second edition of Principles of Evidence in 200243 qualify their statement that “[p]riests…can be compelled to disclose the sources of their information”44 citing Smit v Van Niekerk in 1976 with a reference to Freedman and note that he “argues that the Constitution requires a broader recognition of the categories of privileges communications”45 – a view they note is shared by Van Dokkum.46 Currie and de Waal47 also infer that the rights enshrined in the 1996 Constitution will require more than such a passing nod from the judiciary and legal commentators in the future. The right to privacy set out in section 14 of the new Constitution is intended to protect human dignity,48 and “religious practices may only be limited if they cause harm”.49 But these new constitutional rights are not absolute. They still have to be “balanced against the concern of society that the truth about unlawful conduct be exposed”.50 Is it then fair to expect that the public interest in the administration of justice, which includes the courts having access to all the evidence, will never be trumped in South Africa despite her new constitutional safeguards? This author thinks Freedman is right to doubt that that the decision in Smit v Van Niekerk accurately expresses the law in South Africa since 1996. Freedman has written: All South African courts are required to take into account the provisions of the Constitution and in particular the rights contained in Chapter Two. In Holomisa v Argus Newspapers Ltd 1996 (6) BCLR 836 (W) Cameron J observed that the interim Constitution’s (Constitution of the Republic of South Africa, Act 200 of 1993) structures and values provide an opportunity to re-examine, not only, much of our current statute law but also the manner in which those laws have been interpreted by the courts.51 41

Constitution of the Republic of South Africa, 1996, Section 14. Ibid, Section 15. 43 Schwikkard, PJ, Van Der Merwe SE, Collier DW, De Vos WL, St Q Skeen, A and Van Der Berg E, Principles of Evidence, 2nd ed., Lansdowne, JUTA Law, 2003 reprint. 44 Ibid, para 10.4. 45 Idem, footnote 184 – Freedman, W., “A privilege for members of the clergy: Smit v Van Niekerk reconsidered”, 10 SACJ (1997) 74. 46 Idem, Van Dokkum, N., “Medical evidential privilege”, 9 SACJ (1996) 14. 47 Currie, I., and de Waal, J., The Bill of Rights Handbook, 5th ed., JUTA and Company Ltd, South Africa, 2005. 48 Ibid, para 14.3, p. 320. 49 Ibid, para 15.3, p. 343. 50 Ibid, para 14.5, p. 334. 51 Freedman, op cit, pp. 81–82. 42

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He then quotes Cameron J: The requirement that the fundamental rights guarantees be give due regard may entail that even the high authority of pre-Constitution judicial determinations be superseded. To have due regard to something means to take it into proper account, to give appropriate consideration to it. The phrase spirit, purport and objects is broad and encompassing. It includes values which underlie the Constitution, the objectives the Constitution as a whole seeks to attain, and the enactment’s sense, tenor and ostensible meaning52

and submits in masterful understatement, that “[t]he same opportunity… exists under South Africa’s new Constitution.”53 Since the “policy making function requires the courts to develop and adjust the law in response to the ever changing needs of society”,54 and since “the rights set out in Chapter Two of the Constitution represent…the fundamental legal convictions of South African society”,55 “[t]he values underlying the[se] fundamental rights….have to be considered as factors determining public policy or the public interest”.56 Freedman concludes his analysis with the observation that the re-examination required by “the concretization of the legal convictions of the community in Chapter Two of the Constitution will compel a court…to balance conflicting policies.”57 Despite the requirement “that sincerely held religious beliefs and practices be afforded the utmost respect and protection”,58 he suggests “it both unlikely and undesirable that a blanket privilege be extended to religious communications”59 but predicts that the “grant of a qualified privilege to members of the clergy”60 à la Gruenke in Canada, would also be the perfect solution for South Africa. Such a privilege would encourage “the creation and development of spiritual relationships”;61 it would allow case by case analysis;62 and “it would allow the courts to determine whether a particular individual’s freedom of religion will be imperilled by the admission of the evidence”.63 Significantly, Freedman does not think this approach would have changed the result in Smit v Van Niekerk because in his estimation, the communication between the Reverend Smit and Mrs Geldenhuys had no “religious or spiritual aspect”;64 “did not fall into the

52 53 54 55 56 57 58 59 60 61 62 63 64

Holomisa v Argus Newspapers Ltd 1996 (6) BCLR 836 (W) at p. 850. Freedman, op cit, p. 82. Idem. Idem. Idem. Ibid, p. 83. Idem. Idem. Idem. Idem. Idem. Idem. Ibid, p. 85.

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pastor-penitent category”;65 “did not take place in private”;66 and there had been no “previous relationship of a religious nature between the appellant and Mrs Geldenhuys”.67 While these last conclusions do not all square with the Supreme Court of Canada’s ecumenical treatment of non-traditional religious communications,68 Freedman’s implicit expectation that traditional confession will fare rather better under Canadian practice, has already been noted.69 What then is an appellate court in South Africa likely to decide if a case involving a non-traditional confidential religious communication with a member of the clergy is presented for adjudication? While the Constitutional Court has not heard a case that directly answers this question, religious confession privilege issues were raised in S v Bierman70 in 2002. However, even though the admissibility of the applicant’s confession to a priest was contested at her murder trial, “it was not raised in her application for leave to appeal to the Supreme Court of Appeal”71 and it was decided that that failure “inhibited her ability to raise [it] in the Constitutional Court.”72 Though the summary of the case confirms the failure of her submissions in favour of a religious communications privilege in the High Court after the advent of the new Constitution, it is very clear that the trial court decision does not carry any precedential weight. The applicant failed in her submission in the Constitutional Court because the 65

Idem. Idem. 67 Idem. 68 In his majority judgment. Lamer CJ quoted a paragraph from the previous majority judgment of the Supreme Court of Canada in R v Big M Drug Mart Ltd [1985] 1 SCR 295, 336: 66

A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct. A free society is one which aims at equality with respect to the enjoyment of fundamental freedoms and I say this without any reliance upon s.15 of the Charter. Lamer CJ continued and explained that he had therefore “employed the general term ‘religious communications’ in place of the more traditional term ‘priest-penitent communications” because the “case-by-case analysis” enjoined by his court “must begin with a ‘non-denominational’ approach. The fact that the communications were not made to an ordained priest or minister or that they did not constitute a formal confession will not bar the possibility of communications’ being excluded” (R v Gruenke [1991]3 SCR 263, 291). For comparative purposes it is noted that the reason Adele Gruenke’s communications were admitted, was not because they were nontraditional in any way, but rather because they were not made with an expectation of confidentiality (ibid, p. 292). Mrs Geldenhuys’ communications with the Reverend Smit do appear to have been made with an expectation of confidentiality since no one ever testified as to what was said unlike the two members of the clergy who attended Adele Gruenke. Though Mrs Geldenhuys’ brother was present, he was a Deacon in the church and did not disclose what passed. It is also noteworthy in a similar spirit, that the NZ Court of Appeal did not think someone needed to be a parishioner of the member of the relevant church to make a valid claim of privilege (R v Howse [1983] NZLR 246, 248 per Cook J. While those statements were made in a case interpreting a statutory privilege, as in Gruenke, the claim of privilege in Howse failed because there was no expectation of confidentiality when the communication occurred. 69 Chapter 5, p. 148, supra 70 S v Bierman 2002 (5) SA 243. 71 S v Bierman 2002 (5) SA 243 (CC) 72 Idem.

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Court considered her conviction “rested on the testimony of several witnesses in addition to [the clergyman].”73 The reason the Constitutional Court would not consider the point was because even if she was successful on the confidential religious communications issue, it was clear that her conviction would not be set aside.74 To make it clear that the Constitutional Court was not to be interpreted as having decided the point, O’Regan J expressly stated: It should be plain however that in refusing this application, this Court has not considered the question whether the common law principle enunciated in Smit v Van Niekerk…is inconsistent with the spirit, purport or objects of the Bill of Rights. That is a matter that remains to be considered in the future in an appropriate manner.75

What submissions could be made on behalf of a member of the clergy who did not wish to testify about the details of a confidential communication? How would a court treat such submissions or those from a person accused of crime who wished to prevent her priest from providing such testimony to the court? First, and in keeping with the historical analysis undertaken in this book, counsel for a priest who wished to keep religious communications confidential, could submit that it was now clear that Rumpff CJ’s premise that there was no religious confession privilege in England as at May 30, 196176 was incorrect. Secondly, counsel for that priest could assert with a reasonable degree of confidence, that sections 14 and 15 of the 1996 South African Constitution demonstrated that it was similarly no longer correct to assert that the absence of “the right to silence for clergymen”77 in the Criminal Procedure Act demonstrated that public policy was set against the existence of such privilege as Rumpff CJ stated in Smit v Van Niekerk. Thirdly, it could be demonstrated with authority from both Canada and New Zealand,78 that in a modern and pluralistic society even without constitutional protection for freedom of religious practice, there was a place for common law recognition of confidential religious communications privilege. Fourthly, provided the priest concerned had not waived privilege in any significant way, that it did not matter that the person reposing the confidence in the priest had never attended that priest’s church before, nor participated in any formal confessional ritual.79 And finally, that Jeppe J’s decision in Wissekerke v Wissekerke in 1923 was probably a correct statement of the law in a civil case before the policy imperatives of the

73

Ibid, p. 244. Ibid, pp. 245–246. 75 Ibid, p. 246. 76 Smith v Van Niekerk (1976) 4 SA 293 (A), 302. 77 Ibid, p. 303. 78 R v Gruenke [1991]3 SCR 263, 291 per Lamer CJ and R v Howse [1983] NZLR 246, 248 per Cook J. 79 See note 68 supra. 74

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apartheid regime took hold, and is appropriately resurrected as an expression of credible South African authority for the future. Conclusion The end of the apartheid regime in South Africa in 1994 and the establishment of the new Constitution in 1996 confirms that a new era of jurisprudence will gradually settle in the future. While the old jurisprudence has not all been swept away and will inform the future, where superceded public policy consideration undergirded some of that jurisprudence, it is to be expected that the resultant jurisprudence will be revisited and appropriately changed. Such is the position of the law in relation to confidential religious communications in South Africa. Though the decision of the Appellate Division of the Supreme Court in Smit v Van Niekerk was the final word on claims of religious confession privilege from 1976 to 1994, it can no longer be seen in that way. For not only does the South African public policy enshrined in sections 14 and 15 of the 1996 Constitution imply the need for reconsideration of the public policy consideration which Rumpff CJ said underlay the decision in Smit v Van Niekerk, but the commentative interpretations of the English common law upon which he relied have been demonstrated to have significant flaws. Since the Supreme Court of Canada addressed the question of whether a religious communications privilege should be recognised at common law in R v Gruenke in 1991 in a multicultural society with similar constitutional protection of freedom of religion, it seems highly likely that Canadian jurisprudence will inform future South African jurisprudence when confidential religious communications privilege presents itself for adjudication. Thus this writer believes that South Africa should and will privilege confidential religious communications in the future. The most critical issue in practice will remain whether the communications concerned were made with an expectation of confidentiality. For the absence of that expectation of confidentiality was the only issue that derailed Adele Gruenke’s claim of privilege in that case.

CHAPTER TWELVE

POLICY – SHOULD THERE BE A RELIGIOUS CONFESSION PRIVILEGE? Introduction The question of whether there should be a religious confession or communications privilege is a question of policy. The question of whether there should be a religious confession privilege did not arise in Garnet’s case in the early seventeenth century, But in almost every case that has touched the privilege at common law since, there has been implicit judicial consideration of whether there should be a religious confession privilege because absent clear precedent, the answer was not clear. Sir George Jessel MR simply dismissed the idea without consideration in the late nineteenth century.1 In his mind, the need for all the relevant evidence trumped any suggestion that a privilege that he had never studied would protect any communications with the clergy. Shades of the same reasoning can be detected in Owen Dixon J’s obiter comments in McGuinness v Attorney-General of Victoria2 in 1940 though he could understand why a legislature might want to create such a privilege by statute since it was demonstrable that the judicial search for truth could cost too much and did not trump ever other public interest.3 But many other judges have suggested that there were good policy grounds for the recognition of a religious communications privilege at common law, the earliest being Lord Kenyon CJ in 17914 and Best CJ in 1828.5 Jeremy Bentham, otherwise well-known as a critic of evidentiary privileges in law,6 thought religious confession privilege was justified by the need for freedom of conscience and belief.7 Most academic commentators since have agreed that the public interest justified some form of religious communications privilege – often commenting after judges interpreted a statutory expression

1 Anderson v Bank of British Columbia (1876) 2 Ch D 644; Wheeler v LeMarchant (1881) 17 Ch D 675; 50 LJ Ch 793; [1881–5] All ER 1807. See also discussion supra pages 134–135, 243–244. 2 McGuinness v Attorney-General of Victoria (1940) 63 CLR 73, 102–103. 3 Idem, though note that it was Knight Bruce VC who used the words “the truth can cost too much” in Pearse v Pearse (1846) 63 ER 950, 957. 4 Du Barré v Livette (1791) 1 Peake 108; 170 ER 96. 5 Broad v Pitt (1828) 3 Carr & P 518; 172 ER 528. 6 Wigmore, JH, Evidence in Trials at Common Law, Revised by John T McNaughton, Boston, Little Brown, 1961, Vol. 8., p. 877. 7 Bentham, J, Rationale of Judicial Evidence, New York and London, Garland Publishing, Inc, 1978 (Reprint of the 1827 ed published by Hunt and Clarke, London), Vol. IV, pp. 586–592.

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of the privilege narrowly to the seeming extinction of the legislative intent. Most notable among those has been John Henry Wigmore whose canons of interpretation were designed to guide courts in deciding whether a new confidential communications privilege should be recognised.8 His canons have been cited by many judges and other academic commentators since he first formulated them in 1904.9 The twentieth century’s surge of interest in human rights following the two world wars, has added a whole new layer of constitutional arguments which have been used to justify a religious confession privilege, though all of these arguments have genealogical roots in the first amendment to the United States Constitution and its denial to the United States Congress of any power to abrogate “the free exercise of religion”.10 This chapter will review the heads of judicial and academic comment which identify the arguments for and against religious communications privilege and will assess which of those arguments remain convincing in the twenty-first century. Rationales for Religious Confession and Religious Communications Privilege In the Supreme Court of Canada, L’Heureux-Dubé J found persuasive, the underlying rationales for such a privilege articulated by Cooke J then from the New Zealand Court of Appeal, and Burger CJ from the United States Supreme Court.11 Cooke J had said: The rationale of any such privilege must be that a person should not suffer temporal prejudice because of what is uttered under the dictates or influence of spiritual belief.12

And Burger CJ said: The privileges between priest and penitent, attorney and client, and physician and patient limit protection to private communications. These privileges are rooted in the imperative need for confidence and trust. The priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return.13 8

Wigmore, JH, Evidence in Trials at Common Law, Revised by John T McNaughton, Boston, Little Brown, 1961, Vol. 8, p. 527. 9 Wigmore, JH, A Treatise on the Anglo-American System of Evidence in trials at common law: including the statutes and judicial decisions of all jurisdictions of the United States and Canada, Boston, Little Brown, 1904. 10 First Amendment to the United States Constitution, 1791. 11 R v Gruenke [1991] 3 SCR 263, 296–297. 12 R v Howse [1983] NZLR 246, 251. 13 Trammel v United States 445 U.S. 40 (1980), 51.

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L’Heureux-Dubé J then suggested that a religious communications privilege could be justified by: (a) society’s interest in religious communications; (b) freedom of religion; (c) privacy interests14

and what may be simply described as ‘practical considerations’ - including the recognition that an overpowering discipline15 would see the clergy refuse to cooperate with the courts in a manner that might bring the justice system into disrepute16 if the dictates of that discipline were ignored. L’Heureux-Dubé J also noted Professor Lyon’s belief that the “ ‘best reason’ for granting the privilege is that ‘to admit in evidence confessions made to a priest would be so similar to admitting confessions made under duress to police that the idea should be expressly condemned by the common law’ ”.17 This idea resonates both with Cooke J’s rationale for the privilege cited above, and Baron Alderson’s unequivocal statement in R v Griffin18 in 1851 that religious confession privilege was justified by analogy to legal professional privilege since without “unfettered means of communication”,19 no person could obtain either legal or spiritual assistance. However, it is noteworthy that counsel’s submission that a confession made under spiritual duress (though not to a member of the clergy) in R v Gilham in 1828,20 did not convince the judges who there sat en banc on appeal despite Best CJ’s misgivings in Broad v Pitt six weeks later.21

14

R v Gruenke [1991] 3 SCR 263, 297. Ibid, p. 303–304. 16 L’Heureux-Dubé J cites Professor Seward Reese for his observation that the clergy would still refuse to testify even if the courts tried to compel them (“Confidential Communications to the Clergy” (1963) 24 Ohio St. L.J. 55, 81); Best CJ in Broad v Pitt (1828) 3 Car. & P. 518, 519; 172 E.R. 528, 529 for his unwillingness to ever compel an unwilling clergyman to give evidence from confidential communications; and Professor Lyon for the idea that the admission of confessional evidence is so similar to the admission of confessions made to the Police under duress as to merit express common law condemnation (“Privileged Communications – Penitent and Priest” (1964–1965) 7 Crim. L.Q. 327). 17 R v Gruenke [1991] 3 SCR 263, 304. This idea also has antecedents in the historical origins of the privilege again self-incrimination. For example, Henry E. Smith has stated that the privilege against self-incrimination “had its effective origins in a mid-nineteenth-century analogy between one rule, the witness privilege, and another, the confession rule.” The confession rule at that time held that “[s]tatements made [on oath before a magistrate at pretrial] under the hope of favor or fear of consequences were inadmissible at trial” (“The Modern Privilege: Its Nineteenth-Century Origins,” The Privilege Against Self-Incrimination, Its Origins and Development, Helmholz R.H., Gray C.M., Langbein J.H., Moglen E., Smith H.E., and Alschuler A.W., The University of Chicago Press, Chicago and London, 1997, pp. 145–146. 18 R v Griffin (1853) 6 Cox Cr Cas 219. 19 Idem. 20 R v Gilham (1828) 1 Moody Cr Cas 186; 168 ER 1235. 21 Broad v Pitt (1828) 3 Carr & P 518; 172 ER 528. 15

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In her 1992 text, “Law of Privilege”,22 Professor Suzanne McNicol found three “quite compelling”23 “arguments in favour of a priest-penitent privilege (either at common law or by statute)”.24 They are: First, there is the civil libertarian argument which relies upon a citizen’s fundamental right to the unfettered practice or religion without interference from the law. Secondly, there is the clear unyielding ethical duty imposed upon ministers not to divulge what is said to them in confidence….Thirdly, there is the undeniable fact that ministers will universally disobey a law compelling confidential confessional communications, preferring incarceration over violation of their spiritual duty.25

McNicol’s second and third arguments in favour are L’Heureux-Dubé J’s ‘practical considerations’. McNicol thought these practical arguments were the strongest in favour of the privilege.26 She recognised that Catholic priests in particular “would never betray the confidentiality of the confessional in any way or for any reason….even if this meant penal sanctions”.27 Acknowledging this determination in law would “reduce…unnecessary friction between church and state”.28 She continued: In contrast, the arguments against the creation of a priest-penitent privilege are few and…far from compelling. First, there is the general argument…[that] the withholding of relevant evidence from a judicial tribunal…would be an impediment to the search for the truth and the administration of justice….Secondly,… the creation of a priest-penitent privilege would discriminate against other confidential relationships, such as doctors and patients, accountants and clients, journalists and their sources, anthropologists and their subjects etc., where one of the parties to the relationship is also under an ethical, professional of moral obligation not to disclose confidences. Thirdly,…the creation of such a privilege would involve serious definitional problems, leading to the discrimination in favour of some religions over others….Finally, there is…[no] need for the law to intervene…to bring the law into line with practice.29

Wigmore was more analytical in his treatment of the privilege. He first cited Bentham: [A] coercion…is altogether inconsistent and incompatible [with any idea of toleration]….The advantage gained by the coercion – gained in the shape of assistance to justice – would be casual, and even rare; the mischief produced by it, constant and extensive…this institution is an essential feature of the catholic

22

Nichols, S, Law of Privilege, Butterworths, Australia, 1992. Ibid, p. 328. 24 Idem. 25 Idem. 26 Ibid, p. 329. 27 Ibid, p. 330 citing a press release by Father Brian Lucas quoted in Parliamentary Debates (N.S.W.), Legislative Council, 21 November 1989, p. 12,807. 28 Ibid, p. 337. 29 Ibid, p. 331. 23

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religion, and…the catholic religion is not to be suppressed by force…Repentance, and consequent abstinence from future misdeeds…are the well-known consequences of the institution30

After noting Bentham’s surprising recognition of the need for a religious confession privilege,31 Wigmore tested “[t]he propriety of the privilege”32 against his four famous canons of interpretation. Those canons again 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. (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.33 Wigmore suggested that even though “ecclesiastical rules”34 do anticipate that penitents will make reparation as part of their repentance which reparation will generally involve the publicity of their confessions, to the extent that particular church disciplinary systems do require permanent secrecy, the confidentiality requirement is met.35 He observed that since religious confessions would likely be discontinued in the absence of such confidentiality, the second canon was met for the institution could not survive without confidentiality.36 Thirdly, he said that both the toleration of religion and the recognition of freedom of religious practice in the laws of a state, confirmed that “the penitential relation deserve[s] recognition and countenance”37 in that state. And finally, convinced by Bentham38 he opined that the injury to this religious institution would outweigh the benefit to the administration of justice by the disclosure of “the party’s own confession”.39 Additional to Bentham’s assessment of this injury, Wigmore however added that “no system of law”40 ought to rely upon confessions “as a chief material object of proof. In criminal cases it would be

30

Wigmore, JH, Evidence in Trials at Common Law, Revised by John T McNaughton, Boston, Little Brown, 1961, Vol. 8, p. 877, quoting Bentham, op cit., pp. 589–590. 31 Ibid, p. 877. Surprising again since Bentham was an opponent of all other evidentiary privileges as simple obstacles in the quest for truth in court processes. 32 Wigmore, ibid, p. 878. 33 Ibid, p. 527. 34 Ibid, p. 878. 35 Idem. 36 Idem. 37 Idem. 38 Idem. 39 Idem. 40 Idem.

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impolitic to encourage a resort to this too facile channel of communications”.41 This idea recalls again Lyon’s idea that the best reason to allow religious confession privilege is to prevent police and prosecution access to evidence if it was extracted under any form of duress. The idea that compulsion is unacceptable evolved in response to the excesses of the prerogative courts of the Tudors and Stuarts including Star Chamber. By the late eighteenth century Courts had accepted that “a confession forced from the mind by the flattery of hope, or by the torture of fear, c[a]me…in so questionable a shape when it is to be considered as the evidence of guilt that no credit ought to be given to it”.42 Wright and Graham have noted that most discussions of the policy justifications for religious confession privilege in the United States get bogged down in First Amendment considerations – specifically whether “the privilege is constitutionally required under the Free Exercise Clause of the First Amendment … [or whether] recognition of the privilege is constitutionally barred by the Establishment Clause of the First Amendment”.43 But when they reviewed Wigmore’s policy justifications for the privilege and particularly his four canons, they were not convinced that a religious confession privilege was justified. They said that Wigmore was “remarkably vague with respect to the values the privilege is supposed to foster”44 and did not get far beyond Bentham.45 He assumed “a doctrinally required confession such as that of the Catholic church”,46 and “he does not think …[his first canon] is satisfied for a more ecumenical privilege”.47 Wright and Graham said that it was not clear whether “the benefits [Wigmore] has in mind”48 as satisfying his second canon, are “benefits of the religion to the state or the benefits of the sacrament to either the penitent or the state”.49 And he “is silent on the benefits of the privilege to society”.50 Wright and Graham found a more complete explanation of these benefits, which Wigmore said any evidentiary privilege must demonstrate to be recognised, in the writings of “Bentham’s foremost American evidentiary disciple”.51 Livingstone explained that 41

Idem. Smith, Henry E., op cit., p. 154 citing Warickshall’s Case (1783) 1 Leach 263–264; 168 ER 234, 235. However note that Smith thinks that the decision of the court in R v Gilham (1828) 1 Moody Cr Cas 186; 168 ER 1235 is difficult to understand in the context of Warickshall’s Case since though the prisoner’s confessions in Gilham were not made to a member of the clergy, they were ‘compelled’ by religious influence and the court did not explicitly say that that the “cautions” given the prisoner outweighed that influence (op cit., p. 155). 43 Wright, CA, and Graham, KW, Federal Practice and Procedure: Evidence, 3rd ed, St Paul Minnesota, West Publishing Co, 1992, § 5612, 54, 55. 44 Ibid, p. 79. 45 Idem. 46 Ibid, p. 80. 47 Idem. 48 Idem. 49 Idem. 50 Idem. 51 Ibid, p. 81. 42

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[C]onfession is calculated to produce repentance and reformation; crimes have been prevented, restitution made, and unjust litigation averted by this means; and moreover, the penance imposed by the priest, furnishes the means of inflicting some penalty for offences that, being unknown, would otherwise go unpunished.52

Wright and Graham noted as well that modern “legislators are less inclined than judges to engage in justifications for the creation of a privilege”53 though when they do, they also rely on Bentham54 citing the public interest in having someone “repent [of] culpable conduct”.55 Wright and Graham are less convinced that the phrase “spiritual rehabilitation or solace”56 advances understanding of the need for religious confession privilege, because neither the writers nor the courts have defined what they mean by this phrase and other expressions of similar purport. Wright and Graham wrote that both the Supreme Court’s idea that religious confession privilege “recognizes the human need to disclose…flawed acts or thoughts”57 to a spiritual counsellor and the Oregon drafters’ idea that “the privilege allows individuals to fulfill their religious, emotional, or other needs”,58 make it sound like religious confession privilege is justified if “it makes the penitent feel better”.59 Such justifications do not explain why a penitent’s privilege is any different than a patient’s privilege. But after criticising Wigmore for vagueness, Wright and Graham themselves return to Bentham’s idea which resonated so strongly with Wigmore - that the heart of the need to recognise religious confession privilege may be found in the idea “that the absence of a privilege ‘was altogether inconsistent and incompatible…with any idea of toleration’ of religion”.60 Wright and Graham note that some writers in the United States wrestle with the difficulty of deciding whether a religious confession privilege is required under the Free Exercise Clause of the First Amendment or is forbidden as an unlawful establishment of religion under the Establishment Clause, and then make a distinction “between religious liberty and religion”.61 Specifically this distinction holds that “the purpose of the [religious confession] privilege is ‘promoting or not interfering with…freedom of religion’ rather than encouraging religion”.62 But Wright and Graham come full circle again and seem to

52

Idem citing 1 Livingstone, Complete Works, 1876, p. 467. Ibid, p. 81. 54 Idem. 55 Idem citing Committee Notes, Prop. Kan. C.C.P. § 60–249, Kan.Jud.Council Bull., Nov. 1961, p. 123. 56 Ibid, p. 81. 57 Trammel v United States 445 U.S. 40 (1980), 51, see also note 12. 58 Ibid, p. 82 quoting Commentary on the Oregon Evidence Code Rule 506. 59 Ibid, p. 82. 60 Wright and Graham, op cit., p. 83 citing Bentham, op cit., p. 598. 61 Wright and Graham, op cit., p. 83. 62 Idem citing Thompson, Minnesota Practice: Evidence, 1979, p. 191. 53

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restate Wigmore’s third canon in favour of religious confession privilege when they note other writers who “assume that freedom of religion is an ultimate value that needs no further justification”63 or that religious confession privilege is justified merely because “it avoids religious strife”.64 While Wright and Graham seem to want to see religious confession privilege justified empirically according to an instrumental standard such as Wigmore’s four canons arguably provide, justifying religious confession privilege seems to boil down to a question of whether religious confidentiality is a value that a given society wants to protect. This question – whether religious confidentiality is a value that a given society wants to protect – is a core concern of most of the commentators considered so far in this chapter. It is just another way of expressing Wigmore’s third canon – “The relation must be one which in the opinion of the community ought to be sedulously fostered”.65 It is the reason for the ‘should’ in Cooke J’s statement from New Zealand that “[t]he rationale of any such privilege must be that a person should not suffer temporal prejudice because of what is uttered under the dictates or influence of spiritual belief ”66 (italics added). It is the reason why Chief Justice Burger from the United States Supreme Court said “that the human need to disclose to a spiritual counselor”67 is founded upon an “imperative need for confidence and trust”.68 But as Wright and Graham point out when they say Wigmore’s canons are vague, this question of whether society wants a religious confession privilege is not really a justification at all. It is nothing more than saying, the question of whether a society should have a religious confession privilege depends upon whether a society wants to have a religious confession privilege or not. After all this commentary has been considered it seems there are really only five possible policy justifications for religious confession privilege. L’HeureuxDubé J names three: (a) society’s interest in religious communications; (b) freedom of religion; (c) privacy interests.69 Wright and Graham are a little more specific than both L’Heureux-Dubé J and McNicol when they break “practical considerations”70 down into two succinct ideas which they name:

63 Idem citing Goode, Welborn and Sharlot, Guide to The Texas Rules of Evidence, 1988, p 286. 64 Idem citing White, Confession and The Law, 1938, p. 8. 65 Wigmore, ibid, p. 527. 66 R v Howse [1983] NZLR 246, 251. 67 Trammel v United States 445 U.S. 40 (1980), 51. 68 Idem. 69 R v Gruenke [1991] 3 SCR 263, 297. 70 Ibid, pp. 303–304; Nichols, S, Law of Privilege, Butterworths Australia, 1992, p. 328.

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(d) the futility rationale,71 and (e) the legitimacy rationale,72 and finally, there is (f) the eighteenth century idea that no one should be ‘compelled’ to give evidence at all.73 Society’s Interest in Religious Communications L’Heureux-Dubé J notes “several authors [who] have suggested utilitarian (or “instrumental”) values would be promoted by a privilege for confidential religious communications”.74 Professor Cole says that [c]onfidentiality in the relationship between the religious leader and an individual allows full and frank discussion of matters which are troubling to the individual, allowing the individual to draw ‘psychological and spiritual sustenance’ from the relationship.75

Paraphrasing Mitchell, L’Heureux-Dubé J says that “the spiritual benefit to the individual is said to contribute to the overall health of society. By creating a privilege, the law”76 has determined that, in the long run, society gains more by fostering these relationships than it gains from disclosure of communications within these relationships.77

L’Heureux-Dubé J says that the essence of this utilitarian argument for a religious confession privilege is best understood when Professor Mitchell analyses a religious confession privilege against the “four fundamental conditions [Wigmore identified as] necessary [for the recognition] of a privilege against the disclosure of communications”:78 A more commonly mentioned reason [for fostering the clergy-confider relationship] is the benefit the community derives from the mental, emotional, and spiritual health of its members. One author has written that the privilege is important to the health and stability of the whole society and that it enables people to deal with their problems with positive results. The individual penitent or counselee

71

Op cit., p. 84. Ibid, p. 86. 73 Smith, Henry E., op cit., pp. 153–156 74 R v Gruenke [1991] 3 SCR 263, 297. 75 Cole, WA, “Religious Confidentiality and the Reporting of Child Abuse: A Statutory and Constitutional Analysis” (1988) 21 Colum JL and Soc. Probs 1, 15. 76 R v Gruenke [1991] 3 SCR 263, 297–298. 77 Mitchell, MH, “Must Clergy Tell? Child Abuse Reporting Requirements Versus the Clergy Privilege and Free Exercise of Religion” (1987) 71 Minn L Rev 723, 762. 78 Wigmore, ibid, p. 527. 72

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L’Heureux-Dubé J notes the Tiemann and Bush assertion that “[c]onfidence must be complete if pastoral counseling is to be helpful. There must be no possibility of a disclosure of the shared confidences should a court of law call the pastor or rabbi as a witness”.80 She quotes Bentham’s assertion that religious confessions would dry up if they could be compelled as evidence81 and adds another quote from Mitchell to similar effect.82 But Cole’s explanations of society’s interest in the privilege seem to impress her the most since she concludes her analysis of this head of policy justification for the privilege with this lengthy quotation: Religious confidentiality is vitally important to the maintenance of religious organizations as well as to their individual members. An atmosphere of trust, made possible by the knowledge that communications made in secret will remain secret, is the keystone of strong clergy-communicant relationships which are in turn the cement that holds many religious organizations together. In a very real sense, then, the value of religious confidentiality is the value to society of religion and religious organizations generally. Even from a purely utilitarian perspective, that value cannot be overstated. Religious organizations based on claims to unchanging truths are a stabilizing influence in an increasingly fast-paced and atomized society where bonds of community are scarce and worth preserving. Moreover, many provide needed social services that government is unwilling or unable to provide in a cost-efficient and humane manner.83

L’Heureux-Dubé J ends convinced. She states These societal interests are intuitively compelling, if they acknowledge a privilege in those uncommon situations where the confidentiality of a relationship is so fundamental that breaching it would do more harm than good to society. In those circumstances, public policy would be promoted at the cost of the search for truth.84

These last words are an uncited reference back to Knight Bruce VC in Pearse v Pearse who had stated in 1846 79 R v Gruenke [1991] 3 SCR 263, 298, L’Heureux-Dubé J quoting Mitchell, op cit., p. 767 but omitting her footnotes. 80 R v Gruenke [1991] 3 SCR 263, 298–299, L’Heureux-Dubé J quoting Tiemann, WH, and Bush, JC, The Right to Silence – Privileged Clergy Communication and the Law, 2nd ed, Nashville, Abingdon Press, 1983, p. 23. 81 R v Gruenke [1991] 3 SCR 263, 299, L’Heureux-Dubé J quoting Bentham, J, Rationale of Judicial Evidence, (1827) p. 587. 82 R v Gruenke [1991] 3 SCR 263, 299, L’Heureux-Dubé J quoting Mitchell, op cit., p. 765. 83 R v Gruenke [1991] 3 SCR 263, 299–300, L’Heureux-Dubé J quoting Cole, op cit., pp 15–16. 84 R v Gruenke [1991] 3 SCR 263, 300.

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The discovery and vindication and establishment of truth are main purposes certainly of the existence of Courts of Justice; still for the obtaining of these objects, which however valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not every channel is or ought to be open to them. The practical inefficacy of torture is not, I suppose, the most weighty objection to that mode of examination…Truth, like all good things, may be loved unwisely – may be pursued too keenly – may cost too much.85

Owen Dixon J in Australia in 1940 later more negatively observed that “an inflexible rule was established that no obligation of honour, no duties of nondisclosure arising from the nature of a pursuit or calling, could stand in the way of the imperative necessity of revealing the truth in the witness box.”86 Only in a few cases where paramount considerations of general policy appeared to require that there should be a special privilege, such as husband and wife, attorney and client, communications between jurors, the councils of the Crown and State secrets, and by statute, physician and patient an priest and penitent87

would Owen Dixon J concede an exception to the inflexible disclosure rule. Owen Dixon J’s narrowing of the breadth of Knight Bruce VC’s principle, seems more consistent with the narrow approach to privilege that is common in modern courts. Against all of this and consistent with the direction Owen Dixon J would have the courts take when exceptions to the inflexible disclosure rule are mooted, Wright and Graham have written that there is no empirical evidence to prove that confessions would dry up or presumably that churches would cease to exist, if there were no religious confession privilege. They state that “[t]he absence of any such privilege in most of the [United States] for much of our history suggests that the privilege is not essential to the legitimacy of the government”88 or presumably to the existence of the church and the continued practice of religious confession. They continue that experience in countries that have taken more extreme measures against organized religion than requiring its functionaries to testify to confidential communications offers no convincing evidence of the destabilizing effects on governments or repression of religious activities.89

But they are not completely convinced despite their effort to provide a balanced review of this instrumental argument. Why are they not convinced?

85 86 87 88 89

Pearse v Pearse (1846) 63 ER 950, 957. McGuinness v Attorney-General of Victoria (1940) 63 CLR 73, 102–103. Ibid, p. 103. Wright and Graham, op cit., p. 87. Idem.

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Because “the continued vitality [of]…supposedly dormant religious feelings”90 was an unmistakable factor “in the collapse of governments in Eastern Europe in the late 1980s and [in the destabilization of]…the Middle East and the outlying parts of the Soviet Union”.91 Professor Michael Young, President of the University of Utah and a former Chair of the US Commission on International Freedom, has made this point more clearly and more recently when he stated Religion is profoundly important intellectually. We cannot understand geopolitical movement, economics, politics and history without taking seriously the role and the nature of religion in the process…. Four fifths of the world’s people are profoundly religious, and religion matters enormously in their lives.92

Peter L. Berger, the renowned sociologist of religion whose secularisation thesis in the 1970s suggested that religion would lose its political significance as the twentieth century drew to a close, famously admitted he was wrong93 and has emphatically stated [T]he assumption that we live in a secularized world is false. The world today, with some exceptions…,is as furiously religious as it ever was, and in some places more so than ever,94

90 91 92 93

Ibid, p. 86. Ibid, p. 86–87. “The Relevance of Religious Freedom”, Clark Memorandum, Spring 2008, 15, 19. Steve Bruce has stated Until the 1980s, most social scientists supposed that the modern world was becoming increasingly Godless. Peter Berger was influential in developing the secularization thesis….He is also the most eminent of those who now challenge the thesis. In 1974 he began to question his own conclusions: ‘In the last few years I have come to believe that many observers of the religious scene(I among them) have over-estimated both the degree and the irreversibility of secularization’ (1974b, p. 16). Two decades later his reservations had hardened into repudiation: ‘The big mistake, which I shared with everyone who worked in this area in the 1950s and ‘60s, was to believe that modernity necessarily leads to a decline in religion’ (1998, p. 782). “The curious case of the unnecessary recantation: Berger and secularization”, Bruce, Steve in Peter Berger and the Study of Religion, Woodhead, Linda, Heelas, Paul and Martin David, Eds., 2001, Routledge, London and New York, p. 87.

Though Bruce himself doubts that Berger needed to recant, Berger is adamant that he was correct to recant: Those who…maintain the old secularization theory – Bryan Wilson and Steve Bruce are notable among them – can be admired for their dissent – from what is by now a widespread consensus among scholars of contemporary religion. For all that, they are wrong (“Postscript” in Peter Berger and the Study of Religion, Woodhead, Linda, Heelas, Paul and Martin David, Eds., 2001, Routledge, London and New York, p. 194). 94 “The Desecularization of the World: A Global Overview”, Berger, Peter L. in The Desecularization of the World: Resurgent Religion and World Politics, Berger, Peter L. Ed., 1999, Published jointly by the Ethics and Public Policy Center and Wm. Eerdmans Publishing Co., Grand Rapids, Michigan, p. 2.

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and The world today is massively religious, is anything but the secularized world that had been predicted….by so many analysts of modernity.95

On balance, it would seem L’Heureux-Dubé J is right to be convinced that society has a significant interest in preserving religious confession privilege. That conclusion is the more justifiable when the power of religion is harnessed or at least neutralised as a factor in the legitimacy of government as will be discussed infra. Freedom of Religion Does freedom of religion as a democratic libertarian value justify the existence of a confidential religious communications privilege? For the majority in R v Gruenke,96 Lamer CJ found that the issue of whether a religious communications privilege was required by the establishment of freedom of conscience and religion as a fundamental freedom in Canada, had been adequately considered and conclusively decided by his predecessor Dickson CJ. Lamer CJ quoted the Ontario Court of Appeal’s disposition of that issue in Re Church of Scientology and the Queen (No.6):97 Chief Justice Dickson stated in R. v. Big M Drug Mart Ltd. (1985), 18 C.C.C. (3d) 385, 18 D.L.R. (4th) 321, [1985] 1 S.C.R. 295, that the fundamental freedom of conscience and religion now enshrined in s. 2(a) of the Charter embraces not only the freedom of religious thought and belief but also “the right to manifest religious belief by worship and practice or by teaching and dissemination”. This protection will no doubt strengthen the argument in favour of recognition of a priest-and-penitent privilege. The restrictive common law interpretation of the privilege may have to be reassessed to bring it into conformity with the constitutional freedom. In our view, however, while s.2 of the Charter enhances the claim that communications made in confidence to a priest or ordained minister should be afforded a privilege, its applicability must be determined on a case-by-case basis. The freedom is not absolute.[Emphasis added by Lamer CJ].98

In her minority judgment in the same case, L’Heureux-Dubé J did not go as far as to disagree with the Chief Justice and state that freedom of religion was an absolute value. Rather she noted the discussion he had cited from Re Church of Scientology and the Queen (No.6) and concluded

95 96 97 98

Ibid, p. 9. R v Gruenke [1991] 3 SCR 263, 290. Re Church of Scientology and The Queen (No. 6) (1987), 31 C.C.C. (3d) 449. Ibid, p. 540.

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Chapter Twelve the interests and values protected by the Charter should be considered to allow the common law to develop in accordance with those principles….In effect, the inclusion of a guarantee of freedom of religion in the Charter indicates that a legal privilege for confidential religious communications is commensurate with Canadian values. While the impact of the Charter in a particular case must, of course, be assessed on the facts of that case, the values outlined above and in the constitutional protection of freedom of religion bring support to the recognition of a religious communications privilege at common law.99

Though she had quoted Cole’s opinion that “[r]eligious confidentiality… should be afforded legal protection simply because all persons have a fundamental right to exercise those religious beliefs freely…[and] not because the results of some cost-benefit analysis tip in their favour”,100 L’Heureux-Dubé J was not prepared to state that freedom of religion by itself justified the recognition of a religious communications privilege category in Canadian common law. On balance, after she had considered her other noted policy considerations along with freedom of religion, she did find the recognition of this new class of privilege justified. But unlike Cole, she did not find it justified by freedom of religion alone even though that value had been enshrined as a fundamental value in the Canadian Charter of Rights and Freedoms. Commentary and judicial opinion from the United States do not advance an understanding of whether freedom of religion by itself justifies a religious confession or communications privilege. Again, that is because the discussion gets bogged down in an argument about whether “the privilege is constitutionally required under the Free Exercise Clause of the First Amendment … [or whether] recognition of the privilege is constitutionally barred by the Establishment Clause of the First Amendment”.101 Though Wright and Graham observe that “[i]t has been usually asserted that any accommodation of religion that is required by the Free Exercise Clause [including the existence of a religious communications privilege] will not be held to violate the Establishment Clause”,102 they nonetheless “[scrutinize] the penitent’s privilege…under the Establishment Clause”103 and conclude that because “[t]he writers have taken clear but diametrically opposed positions on whether the privilege leads to constitutionally permissible entanglement….the precedents do not support a clear-cut decision either way”.104 And when one reviews their

99

R v Gruenke [1991] 3 SCR 263, 301–302. Ibid, p. 300 quoting Cole, WA, “Religious Confidentiality and the Reporting of Child Abuse: A Statutory and Constitutional Analysis” (1988) 21 Colum JL and Soc. Probs 1, 16. 101 Wright, CA, and Graham, KW, Federal Practice and Procedure: Evidence, 3rd ed, St Paul Minnesota, West Publishing Co, 1992, § 5612, 54, 55. 102 Ibid, p. 66. 103 Idem. 104 Ibid, p. 75. 100

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application of the Lemon test,105 it is difficult to avoid the conclusion that the analysis involved is really a consideration of Wigmore’s question of whether religious communications privilege is something that a given society wants to foster or not.106 Again this is circular and not very helpful in this quest to determine whether policy should require the recognition of a religious communications privilege or not. Recently, Professor Frank Brennan asserted like Cole that freedom of religion is an absolute and non-derogable value in a paper presented as part of the Australian debate about whether that country should adopt a bill or charter of rights or not. To demonstrate his point that the mere creation of a human rights instrument without more would not protect human rights in practice, he cited the failure of the Victorian State Parliament and the Australian Medical Association to protect the conscience rights of medical practitioners who did not wish to perform abortions. He said this was the first real test of the Victorian Charter of Human Rights and Responsibilities and it failed spectacularly to protect a core non-derogable ICCPR human right which fell hostage to a broader social and political agenda for abortion law reform and a prevailing fad in bioethics which asserts that doctors should leave their consciences at the door. The outcome was the opposite of that reached in the UK, and with much thinner, more ideological reasoning.107

While Brennan does not have much company in asserting that freedom of conscience (and one suspects, religion) is a non-derogable right even in light of the ICCPR context he cites, it clearly has a higher value than some other rights. In a chapter entitled “Are Human Rights Absolute?”108 Michael Perry says that [n]o one argues that every human right – every “ought” and “ought not” – established by the international law of human rights is or even should be absolute. Indeed, some human rights established by international law are explicitly conditional rather than unconditional – and appropriately so.109

But what of the right to freedom of conscience and religion? Contrary to Brennan, Perry says Even some rights that many members of liberal democratic societies consider to be “fundamental” or “core” human rights – for example, the rights to freedom of expression and to freedom of religion – are, as established by international law,

105

Ibid, pp. 66–75. Supra note 65 and supporting text. 107 Brennan, F. “The Place of the Religious Viewpoint in Shaping Law and Policy in a Pluralistic Democratic Society: a case study on rights and conscience”, Values and Public Policy Conference, Fairness, Diversity and Social Change, Centre for Public Policy, University of Melbourne, 26 February 2009. 108 In Perry, M., The Idea of Human Rights, Oxford University Press, New York, 1998, p. 87. 109 Ibid, p. 88. 106

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Indeed, the only rights which Perry considers are truly non-derogable under the ICCPR are “the inherent right to life” (Article 6); the right not to “be subjected to torture or to cruel, inhuman or degrading treatment or punishment” (Article 7); and the right not to “be held in slavery…[or] in servitude (Article 8(1) & 8(2) ).111

And Perry observes that “Article 15(2) of the European Convention makes substantially the same rights non-derogable”.112 He then observes though some may consider that even these rights are derogable when analysed morally, the ICCPR and European Convention have made them legally non-derogable.113 What then of the conditions which international law places upon the core nature of freedom of thought, conscience and religion? Do those conditions ever justify the abrogation of a religious communications privilege as a manifestation of freedom of religion? As expressed in the ICCPR, an individual’s otherwise absolute right to freedom of religion is “subject…to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals of the fundamental rights and freedoms of others”.114 There is clear room for interpretation here, and in particular against Brennan since the State of Victoria would doubtless justify the details of its abortion law as a law designed to protect the health of the mothers concerned. But then his point was to demonstrate that it was perfectly open to that legislature to find a way to implement its law which did not offend the consciences of some of its doctors. The arguments against the Brennan non-derogable interpretation of any conscientious manifestation of freedom of thought, conscience and religion are very familiar in the European Union. There the European Court of Human Rights has often decided that a state’s interference with a citizen’s rights under Article 9 was “necessary in a democratic society”,115 because that interference was proportionate to the need to accomplish another legitimate state objective and thus within the state’s margin of appreciation.116

110

Ibid, pp. 89–90. Ibid, p. 93. 112 Idem. 113 Idem. 114 Article 18(3), The International Covenant on Civil and Political Rights, Adopted and Opened for Signature by United Nations General Assembly Resolution 2200A (XXI) on 16 December 1966. Entered in Force 23 March 1976. 115 See discussion supra chapter eight, pp. 229–235. 116 For example see Mann Singh v France (Application no 24479/07) http://www.bailii.org/eu/ cases/ECHR/2008/1523.html (site last visited May 23, 2009) where a Sikh man’s complaint that 111

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What then of religious confession and religious communications privilege? Again, it is doubtful that this international law formulation helps a great deal, for though it is easy to say the privilege should endure unless it would endanger, for example, public health and safety, could the disclosure of a confession of child abuse or terrorism serve to protect the public safety? Formulated in this way, it is hard to imagine how any communication or confession of a criminal act to a member of the clergy would survive scrutiny, even outside the European Union, and somehow that seems unsatisfactory. For though L’Heureux-Dubé J did not find that freedom of religion was an absolute or non-derogable value such as might justify a religious communications privilege in its own right, still she opined that the Supreme Court of Canada should recognize religious communications privilege as a distinct category of privilege in Canadian common law to avoid “chilling…the spiritual relationship within our society”.117 She also observed that “[t]he lack of a recognized category…has ramifications for freedom of religion”118 which is an acknowledgement that this failure signifies that the importance of freedom of religion in Canada generally had been devalued by the majority’s decision not to recognize religious communications as a separate category of evidentiary privilege and that fact had placed religious freedom generally at risk when in competition with other values. Long before the twenty-first century in the case of The People v Phillips,119 it was the 1777 New York Constitution that placed conditions upon the freedom of religion which it guaranteed. Those conditions were expressed in the Proviso to Article XXXVIII which stated “that the liberty of conscience, hereby granted, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state”. In summarizing the guarantee of freedom of religion thus granted Mayor De Witt Clinton who wrote the unanimous judgement observed that only negative acts would offend the proviso. “It would be stretching [the proviso] on the rack so [to] say that it can possibly contemplate the forbearance of a Roman catholic priest, to testify what he received in confession, or that it could ever consider the safety of the community involved in this question.”120 But though such interpretation was accommodating to this culturally understandable religious practice, the very same judge’s statement against some less well understood religions

the requirement to provide a bareheaded photograph was a disproportionate interference with his rights under Articles 8 and 9 was declared inadmissible (see also Doughty Street Chambers Human Rights Bulletin, 9 April 2009, issue number 18, p. 11). 117 R v Gruenke [1991] 3 SCR 263, 311. 118 Ibid, p. 312. 119 The People v Phillips (1813) NY Ct of General Sessions, reprinted at (1843) 1 Western LJ 109 and (1955) 1 Catholic Lawyer 199. 120 Ibid, p. 208.

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identifies space for the concern. He said indicated that the law would not be prepared to accommodate a religious sect [which]…violated the decencies of life, by practising their religious rites, in a state of nakedness: by following incest, and a community of wives. If the Hindoo should attempt to introduce the burning of widows on funeral piles of their deceased husbands, or the Mahometan his plurality of wives, or the Pagan his bacchanalian orgies or human sacrifices….would be rightfully… chastise[d by the hand of the magistrate]121

Mayor Clinton’s honest candour demonstrates just how subjective and unaccommodating some religious freedom formulations can be. Professor Martha Nussbaum says “[t]his language should raise a red flag for us, showing us how ready even liberal defenders of religious liberty are to demonize what they do not know”.122 Again, these formulations provide little more understanding of how it is that freedom of religion as a human right or constitutional value can and should protect religious communications privilege – and they bring us back to Wigmore’s insight that a society will only protect those values that it wants to foster.123 But Nussbaum suggests that “a distinctively American combination of principles”124 has been evolved in that nation which has the potential to guide the protection of liberty of conscience despite majoritarian pressure and even national hysteria.125 If she is correct, then her principles may also provide a sound philosophical basis from which to justify a religious communications privilege premised in freedom of religion. Her book laments that it has been necessary for each succeeding American generation to relearn the needful fundamentality of freedom of religion as expressed in the First Amendment because of some terrible abuses.126 But she finds a silver lining through that experience and suffering which may help other countries avoid the repetition of American errors. She says that even though the First Amendment has sometimes been represented as the talismanic expression of a fundamental and non-derogable value, that foundational expression has not protected Jehovah’s Witnesses, Mormons and Roman Catholics when those faiths were at their most vulnerable.127 And she notes that even the United States Supreme Court has conspired in that persecution.128 But through it all 121

Ibid, pp. 208–209. Nussbaum, M., Liberty of Conscience, Basic Books, New York, 2008, p. 129. 123 Supra note 65 and supporting text. 124 Nussbaum, op cit, p. 25. 125 Idem. She generalizes European practice to state that if a religious minority “wanted political rights, they would have them at the sufferance of the majority…The European tradition also sees no problem with curtailing liberty, sometimes unequally as the French headscarf case shows. Current problems that many European nations are experiencing should, I believe, lead them to study and consider adopting the subtly different American conception.” 126 Ibid, pp. 359–360. 127 Ibid, p. 4. 128 Ibid, pp. 4, 193–198, 222. 122

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the United States has retained “a shared understanding of religious fairness… [as a] ‘fixed star’ of [her] tradition”.129 That “fixed star” includes the notion that “liberty of conscience is worth nothing if it is not equal liberty”130 and that “no [religious] orthodoxies are admissible”.131 She then articulates her six principles which she implies can guide any society into a new world where the religious freedoms of even unpopular minorities can be protected in the very times when those minorities are most unpopular. Nussbaum seeks to get beyond Wigmore’s circular observation that an evidential privilege should be protected only if the relevant society wants to “sedulously foster” the value which underlies that privilege.132 Nussbaum believes her principled approach to the treatment of minority religious freedom claims, has the potential to protect those minority claims even when those claims are unpopular – the time when the relevant minorities need rights protection the most. Her principles are: The Equality Principle. All citizens have equal rights and deserve respect from the government under which they live. The Respect-Conscience Principle. Respect for citizens requires that the public sphere respect the fact that they have different religious commitment…and provide a protected space within which citizens may act as their conscience dictates…. If respect for persons is to be equal, this consideration for the conditions in which conscience operates must also be equal: all citizens enter the public square “on equal conditions.” The Liberty Principle. Respect for people’s conscientious commitments requires ample liberty… The Accommodation Principle….sometimes some people (usually members of religious minorities) should be exempted from generally applicable laws for reasons of conscience… The Nonestablishment Principle…The state may make no endorsements in religious matters that would signify an orthodoxy, creating an in-group and outgroups… The Separation Principle…a certain degree of separation should be created between church and state: on the whole, church and state have separate spheres of jurisdiction.133

She notes that these are a distinctively American combination of principles. Most European traditions have been happy with establishments that preserve ample space for religious

129 130 131 132 133

Ibid, p. 3. Ibid, p. 2. Ibid, p. 18. See note 33 and supporting text. Nussbaum, op cit., pp. 22–25.

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Conformity to an orthodoxy, even a state imposed secular orthodoxy, does not satisfy Nussbaum as real respect for freedom of conscience, thought and religion. Criticism of that European idea is part of the reason why she wrote her book entitled “Liberty of Conscience”. L’Heureux-Dubé J similarly recoils from the European idea that it is all right for the state to impose a homogeneous orthodoxy which chills free exercise of religion. She would bulwark religious communications privilege against majoritarian tyranny by recognising it as a distinct and probably non-derogable rule of Canadian evidence law. Brennan appears to be willing to legislatively force the state to take the need to accommodate freedom of conscience, thought and religion so seriously that laws which would abrogate any part of that freedom must be scutinized and revised until there is no possibility that a conscience, and particularly a religious conscience, will be coerced. So can a religious communications privilege be justified by the need to promote freedom of religion? The answer must be that the jury is still out. But Bentham’s practical insight that the state does not have very much to lose by making this relatively trivial accommodation,135 still seems to tip the scales in favour of freedom of religion as such a justification. Even if we recoil from accepting freedom of religion as justifying a religious communication privilege all by itself, one senses with L’Heureux-Dubé J, that it does not take much more justification than the need to recognize freedom of religion generally to make the justification case for a religious communications privilege very compelling indeed.136 Privacy Interests It is very difficult to imagine that a religious communication privilege in evidence law could be solely justified by an individual confessor’s interest in keeping his most intimate communications private. That is because it is difficult to imagine that such an individual’s interest in keeping a confidence about paedophilia or terrorism would ever trump society’s interest in uncovering those crimes. But a little further thought suggests it is not as simple as those two emotive examples of confession by a criminal would suggest. For if society’s

134

Ibid, p. 25. Bentham, J, Rationale of Judicial Evidence, New York and London, Garland Publishing, Inc, 1978 (Reprint of the 1827 ed published by Hunt and Clarke, London), Vol. IV, pp 586–592. 136 R v Gruenke [1991] 3 SCR 263, 311–312. 135

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majoritarian interest always outweighed an individual’s minority right, there would be no protection of any minority rights in any society. Mitchell articulates the privacy rationale for religious communications privilege when she states: The privacy rationale rests the clergy privilege on each person’s interest in the dignity of privacy for his most intimate relationships. A confider who seeks out a member of the clergy for confession and counsel draws on or establishes a soulbaring relationship as deeply intimate as any among family members. There is general repugnance at the law’s intrusion into such a relationship.137

L’Heureux-Dubé J says privacy cannot justify a religious communications privilege under Wigmore’s utilitarian canons because the alleged benefit from the privacy of a religious confidence accrues “to the individual [rather than]… to society as a whole”.138 She quotes Mitchell further in explanation: Unlike Wigmore’s utilitarian rationale, the privacy rationale justifies the clergy privilege primarily in terms of the participants’ interests and not society’s benefit – except to the extent that everyone benefits from living in a society in which the law does not intrude unnecessarily into people’s private lives. Whereas the Wigmore rationale seems to imply that society favors persons confiding in their clergy, the privacy rationale is consistent with society’s neutrality or even antipathy towards such confidences. The privacy rationale protects the clergy-confider relationship because the confider, and not society generally, values that relationship. One advantage, then, of the privacy rationale over the Wigmore rationale is that a privacy rationale maintains the privilege even in the face of popular loss of confidence in the clergy. A related advantage of the privacy rationale is that it does not depend on any showing that disclosure of confidences would in fact deter or inhibit relationships with clergy. In other words, the privacy rationale eliminates the need to meet Wigmore’s second and third prerequisites for a privilege.139

But L’Heureux-Dubé J does not appear completely convinced since she suggests that the privacy rationale is not compelling without the religious element which arises in the context of a religious communication.140 That is, privacy by itself does not justify an evidentiary privilege for any communication no matter how intimate that communication may have been. This in turn explains why it is that when a spousal communications privilege is considered to be justified in law, it is only justified when other societal values141 are superadded to the privacy considerations which are a part of its core. The insight that

137 Mitchell, op cit, p. 768 as quoted by L’Heureux-Dubé J in R v Gruenke [1991] 3 SCR 263, 302. 138 R v Gruenke [1991] 3 SCR 263, 302. 139 Mitchell, op cit, p. 769 as quoted by L’Heureux-Dubé J in R v Gruenke [1991] 3 SCR 263, 302–303. 140 R v Gruenke [1991] 3 SCR 263, 303. 141 For example, society’s interest in preserving the integrity of the marriage relationship.

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privacy alone cannot justify an evidentiary privilege resonates with comments made by various members of the House of Lords in England in D v NSPCC142 in response to submissions by the appellant that Lord Denning’s observations in the Court of Appeal suggested an evidentiary privilege could be founded in mere confidence.143 Lord Diplock rejected the submission that confidentiality simpliciter could outweigh public interest in the administration of justice and prevent disclosure of a communication.144 Lord Hailsham similarly could not accept the breadth of that proposition.145 Lord Simon said that “confidentiality…in itself [did not provide] a satisfactory basis for testing whether relevant evidence should be withheld”146 and Lord Edmund-Davies similarly stated that “the mere fact that information is imparted in confidence does not, of itself, entitle the recipient to refuse disclosure”.147 But it is noteworthy that like Lord Denning in the minority in the Court of Appeal, all of the Law Lords in D v NSPCC found that the identity of the informer in that case should remain confidential because the public interest in protecting the identity of this informer outweighed both the plaintiff ’s private interest in access to that information and the public interest in judicial access to that information so that they might properly administer justice in that case. Though Lord Diplock in particular sought to narrow Lord Denning’s principle that confidences should not be disclosed except as a last resort148 so that it was not larger than necessary in the D v NSPCC case, Lord Denning’s view that the judiciary ought to respect confidentiality is as compelling a judicial expression of the privacy rationale as exists in jurisprudence in the British Commonwealth. He said: I do not regard the N.S.P.C.C. as claiming any privilege…They say they have a duty not to disclose it…The question is not one of their privilege, but of their duty. How far should the court go to compel them to break this confidence? To my mind it is all a question of balancing the competing interests. “ ‘Confidentiality…is not a separate head of privilege.” But it is a very material consideration when deciding whether to compel disclosure. In holding the scales of justice, the courts should not allow confidences to be lightly broken. When information has been imparted in confidence, and particularly where there is a pledge to keep it confidential, the courts should respect that confidence. They should in no way compel a breach of it, save where the public interest clearly demands it, and then only to the extent that the public interest requires. In the converse case where the recipient of confidential information himself threatens to disclose it to others, the courts have repeatedly restrained him from

142 143 144 145 146 147 148

D v NSPCC [1978] AC 171. D v NSPCC [1978] AC 171. Ibid, pp. 219–220. Ibid, pp. 224–225. Ibid, p. 237. Ibid, p. 242. Ibid, pp. 191, 219–220.

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breaching the confidence…save when the disclosure is justified in the public interest… If the courts thus restrain a breach of confidence, surely they should not themselves compel a breach save when the public interest requires. Such is the principle which runs through the cases. In applying it, there are subsidiary rules of particular application. They have emerged singly, but the time has come to group them together. They are sometimes said to be grounds of “privilege,” but I would discard that word because it is misleading. It distracts the mind from the true question which is whether the court will compel a person to break a confidence.149

Lord Denning then discussed eight categories of confidential advice, including communications with one’s lawyer, with one’s priest or medical doctor; communications received by a member of parliament, by a police officer from an informer, by a probation officer or marriage counsellor, by a children’s officer, by the Gaming Board; and on occasions when a government department wished to withhold documents on the grounds of Crown privilege.150 Lord Denning summarised the approach he believed the court should take when it considered confidential information arising in any of these cases by quoting Lord Cross of Chelsea in Alfred Crompton Amusement Machines Ltd. v Customs and Excise Commissioners (No. 2) [1974] A.C. 405, 433–434: What the court has to do is weigh on the one hand the considerations which suggest that it is in the public interest that the documents in question should be disclosed and on the other hand those which suggest that it is in the public interest that they should not be disclosed and to balance one against the other.151

Writing in broad dissent, it does not seem that Lord Denning expected his proposed rewriting of the law of evidence with regard to privilege would persuade his then brethren in either the Court of Appeal or the House of Lords. And his theorising about confidence has yet to bear any substantive fruit. He simply took the opportunity a dissenting judgment provided to opine that confidentiality and by simple analogy, privacy, deserved more respect in English law than it had yet been accorded. But it is noteworthy that none of the law lords who each considered his dictum dismissed it completely. They all wrote judgments restricted to the facts of the D v NSPCC case, but they all acknowledged that confidentiality was a factor to be weighed in deciding whether a court should compel disclosure of a communication or not. It is submitted that this is precisely the same approach that Owen Dixon J took when he said the inflexible rule of disclosure was moderated only in cases

149 150 151

Ibid, p. 190. Ibid, pp. 190–191. Ibid, p. 192.

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of demanding public interest.152 Like Lord Diplock disapproving Lord Denning’s breadth of principle not needed in the case before him,153 Owen Dixon J would circumscribe Knight Bruce VC’s broad principle “that the truth can cost too much”.154 Owen Dixon J would say that it does not cost too much unless overriding considerations of public interest as recognised by a long common law tradition or expressly by statute so dictate. Lord Denning and Viscount Knight Bruce suggest that the value of privacy in society is larger than their brethren have yet conceded. In that context, Mitchell’s suggestion that privacy can be a compelling justification for religious communications privilege on its own since it can endure “even in the face of popular loss of confidence in the clergy”,155 requires further analysis. In essence, Mitchell suggests that evidentiary privileges like human rights are safest when they are reviewed objectively rather than subjectively. That is, evidentiary privileges and human rights are at their most effective when they stand as far apart from changeable popular opinions as they can. The problem with Wigmore’s canons for the establishment of any evidentiary privilege is that they are inherently utilitarian. They move in accordance with the vagaries of public opinion. This is the same circular argument which arises when human rights are considered for legislative entrenchment. Must rights and privileges be constitutionally entrenched to protect them or is society entitled to review them from time to time, and if so, who should review them? L’Heureux-Dubé J’s belief that religious communications privilege should be established as a new and separate category of evidentiary privilege in Canadian common law was intended to protect confidential religious communications from discretionary judicial review that could chill the underlying spiritual relationship. The majority in her court decided in effect that judges could be trusted to decide on a case-by-case basis whether to scrutinize such evidence or not. But she felt that posture was inherently disrespectful. One senses her concern that judges will always want to hear and weigh all relevant evidence before they decide what is most compelling. She also seemed concerned that judges are as apt to be swayed by movements in popular opinion against long term principle as any other member of society. To suggest that by hearing evidence but then directing it be excluded from the formal judicial decision making to follow, is little more than a pretence. The disrespect to any underlying confidentiality is complete if judges get to hear religious confidences whether on a voir dire or otherwise, even if those judges say they have not ultimately weighed the relevant confidential material in their decision making balance.

152 153 154 155

See note 86 and 87 and supporting text. D v NSPCC [1978] AC 171, 219–220. Pearse v Pearse (1846) 63 ER 950, 957. Note 139 supra.

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The thrust of L’Heureux-Dubé J’s concern is that judges should follow rules of evidence rather than retreat to discretion as the basis upon which they make their decisions. To premise decision making in discretion is to reduce both the predictability of the law and the safety of human rights and values. The dilemma as to whether a formal common law rule should have been established in Canada in the Gruenke case rather than leaving the matter to judicial discretion would have been avoided had each provincial legislature created a statutory privilege to put the matter beyond theoretical judicial reach. But no legislation followed. Perhaps the majority in Gruenke showed sufficient respect to privacy and religion in their decision to satisfy the legislature that no further action was needed; perhaps the legislature did not think religious communications needed evidentiary protection in the first place; or perhaps the legislatures did not even hear about the dilemmas which arose in the case. There is one other angle on privacy as a policy justification for a confidential religious communications privilege that can be put, and it arises out of the United States constitutional context. Wright and Graham have observed that privacy arguments are seldom used to moot such privilege in the United States. They suggest that may be because founding a privilege for confidential religious communications in privacy would be an attempt to turn a ritual of submission to, and faith in, a power greater that humans into some sort of incantation of individualistic egoism [and would] trivialize…the values that confession symbolizes for those who are prepared to go to jail rather than permit such secular intrusions into the religious experience.156

A privacy rationale for confidential religious communications privilege might even be blasphemous.157 However the language used by those who argue a “non-instrumental”158 or rights-based rationale for the privilege, implies that the privilege has at least some foundation in privacy considerations. Wright and Graham cite Livingston who says that “to force the disclosure [of] religious confessions would be a tyrannical invasion of the rights of conscience”.159 This quotation recalls Mitchell’s argument in favour of a privacy rationale for confidential religious communication. She said simply that “[t]here is general repugnance at the law’s intrusion into such a relationship.”160 But once again, there is no separation between the clear reference to the right to the free exercise of religion enjoined by the First Amendment and some unarticulated notion that the conscience is private space for secular as

156

Wright and Graham, op cit, p. 90. Idem. 158 Ibid, p. 88. 159 Ibid, p. 89, citing 1 Livingston, Works, 1873, p. 467. 160 Mitchell, op cit, p. 768 as quoted by L’Heureux-Dubé J in R v Gruenke [1991] 3 SCR 263, 302. 157

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well as religious reasons. The most that can thus be said in favour of a privacy justification for a confidential religious communications privilege, is that it adds weight to a policy justification premised in freedom of religion. No one has suggested that a right to privacy by itself is sufficient policy justification for the recognition of such a privilege. The Futility Rationale The futility rationale is one of L’Heureux-Dubé J’s practical justifications for a privilege. The argument says that there is no point in trying to compel a member of the clergy to disclose a confidential religious communication because the member of the clergy concerned would rather go to gaol than disclose the communication. McNicol says that this is because “the [clergy] will simply choose to obey a law of God over a law of man”.161 She says that it is “the strongest argument in favour of a priest-penitent privilege”162 but she does not identify why that is so. Indeed she observes that in the debates in the New South Wales parliament before a religious confession privilege was passed in that Australian state, some opponents of the proposed bill implied that this ministerial preference to observe an unyielding ethical obligation, made any privilege redundant.163 But McNicol says that the recognition of the privilege is desirable “so as to reduce unnecessary friction between church and state”.164 With respect, the author does not find it particularly compelling to say that the likelihood of widespread disobedience to a contrary law is the best reason not to oppose any practice. That there are many people who drive under the influence of alcohol does not make it advisable to abolish laws against drunk driving. L’Heureux-Dubé J noted Professor Seward Reese’s 1963 observation that the “overpowering discipline”165 incumbent upon most clergy not to disclose confidential religious communications means that an opposed positive law would “arguably bring disrepute to the system of justice”.166 But she does not suggest that such logic is good reason by itself to require the recognition of a confidential religious communications privilege as a matter of policy. Wright and Graham suggest that what they call the futility rationale167 originated in

161

McNicol, op cit., p. 328. Ibid, p. 329. 163 Ibid, p. 330. 164 Idem. 165 Reese, S, “Confidential communications to the clergy” (1963) 24 Ohio St LJ 55 as noted by L’Heureux-Dubé J in R v Gruenke [1991] 3 SCR 263, 304. 166 Idem. 167 Op cit., p. 84. 162

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Bentham’s idea168 that the denial of legal confidentiality for religious confessions was simply vexatious since such denial was “[inconsistent] with any idea of toleration”;169 “a downright persecution”;170 and a “constant and all-extensive [mischief]”.171 For Wright and Graham, Blaes made Bentham’s argument “more clearly”172 when he wrote: That this privilege inflicts little loss upon the administration of justice is equally clear. Absent the protection of the statute, the penitential communication might very well not take place at all. Accordingly, that avenue of proof simply would not exist. With the protection of statute the penitential communication is encouraged, the avenue of proof does come into existence, but the statute provides that though it exists, it may not be used. In either instance, the results in the administration of justice are the same.173

Wright and Graham observe that “[t]here are no known instances in which a Roman Catholic priest has broken the seal of the confessional under government compulsion, but attempts to compel disclosure have produced martyrs, both ancient and modern”.174 And while “Protestant clerics have not been uniformly steadfast”,175 there have still been many that have “risked or suffered jail and other penalties for refusing to reveal communications in some judicial proceeding”.176 But Wright and Graham do not commit themselves to Bentham’s idea that these facts alone are policy reason enough to justify a modern statutory confidential religious communications privilege. For them, the futility argument in favour of such privilege is a “secularized political argument”177 with two related branches which “shade…into”178 one another. The second branch of the argument is indeed part of the argument that Bentham, Reese and McNicol have all made in favour of the privilege. It is that the government that opposes this religious practice by seeking to compel disclosure of confidential religious communications will lose some of its legitimacy in the compulsion process. For that reason, so the argument goes, all wise governments will recognise a privilege for such communications.

168

Idem. Bentham, op cit., p. 588. 170 Idem. 171 Ibid, p. 589. 172 Wright and Graham, op cit., p. 84. 173 Blaes, Penitent Privilege Under the New Code, 1964, 33 Kan. B.J. 279, 281 as quoted in Wright and Graham, op cit., p. 84. 174 Wright and Graham, op cit., p. 85. 175 Idem. 176 Idem. 177 Ibid, p. 84. 178 Ibid, p. 86. 169

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Bentham did not consider what Wright and Graham call the ‘legitimacy’ limb of what they call the “secularized political argument”179 that there is no point to seeking to adduce religious confessional material as evidence in court. Perhaps that is not surprising from one of the original positivists who saw black letter legislation as the new parliamentary cure to most if not all of society’s ills. To confess that legislation could fail to achieve its social agenda would have been to open himself up to all manner of criticism from the right of his age. Instead, he justified non-intrusive respect for religious confession practice because such respect would avoid what he called “preponderant vexation”.180 This is the quote from Bentham that Wigmore used above.181 Bentham explained: a coercion of this nature is altogether inconsistent and incompatible [with any idea of toleration]…the people would be pressed with the whole weight of the penal branch of the law: inhibited from the exercise of this essential and indispensable article of their religion: prohibited on pain of death from the confession of…misdeeds…[which] would have the effect of drawing down upon them that punishment….it would be a downright persecution…The advantage gained by the coercion, gained in the shape of assistance to justice, would be casual, and even rare: the mischief produced by it, constant and all-extensive.182

Bentham then explained that the repentance which is initiated by confession may also be said to enhance the overall justice in society. He further observed in any event, that the clergy when left un-coerced, have found ways to protect society by directing enforcement authorities how to prevent serious crime without revealing the identity of any penitent or the nature of the confessional material disclosed.183 McNicol does not really explain why it is that denying religious confession privilege may undermine the legitimacy of the courts or the state more generally. She says only that religious confession privilege should be protected by statute “so as to reduce unnecessary friction between church and state and to prevent the needless criminal conviction and in some case incarceration of ministers”.184 Her use of the words “unnecessary” and “needless” manifest her agreement with Bentham’s hypothesis, but she really does not explain why the coercion of religious confessions is unnecessary save to cite the overriding

179

Wright and Graham, op cit., p. 84 Bentham, op cit., p. 588. 181 Note 30. 182 Ibid, pp. 590–591. 183 Ibid, pp. 591–592. He cites a very ancient French historical example. Few modern enforcement authorities would agree with his suggestion that the clergy willingly assist them in preventing even prospective crime. 184 McNicol, op cit., p. 330. 180

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commitment of the clergy to maintaining religious confidences which is a restatement of the futility argument discussed above. Wright and Graham take the legitimacy argument a little further when they refer to “the threat to the legitimacy of the courts that…confrontations [with members of the clergy] pose”,185 but they then doubt that the futility and legitimacy rationales for a confidential religious communications privilege are compelling. They write: Perhaps the major flaw in the political justification for the penitent’s privilege is its questionable empirical support. The absence of any such privilege in most of the nation for much of our history suggests that the privilege is not essential to the legitimacy of government. The experience in countries that have taken more extreme measures against organized religion than requiring its functionaries to testify to confidential communications offers no convincing evidence of the destabilizing effects on governments of repression of religious activities. On the other hand, it is difficult to say that the empirical underpinnings of this instrumental argument are much weaker than those that support other privileges.186

The difficulty with this criticism is its presupposition that government or courts are only delegitimized if they fail or fall in a manner that is directly attributable to their disrespect toward free exercise of religion. That does not seem to be the essential premise of the legitimacy argument. Rather the point is that the rule of law generally is undermined to the extent it is perceived to be antithetical towards the realisation of social justice in society. If it is socially just to respect free exercise of religion including the confidentiality of religious confessions and other communications intended to be confidential, then the legitimacy argument holds that the legitimacy of government and the courts is diminished in the eyes of the community whenever they do anything which disrespects free exercise of religion. The legitimacy argument does not lose its convincing power if a government is not overthrown because one religious confession was coerced in a courtroom. McNicol’s statements that risking a loss of legitimacy is “unnecessary” and “needless” may thus be seen as an assertion that governments should conduct some sort of cost-benefit analysis before they pass laws that will interfere with common views about social justice. And this returns the argument about the policy justifications for a religious communications privilege, to Wigmore’s question – Is confidential religious communications privilege a value that this society wants to sedulously foster?187 Wright and Graham seek to buttress their suggestion that the legitimacy rationale for a confidential religious communications privilege

185 Wright and Graham, op cit., p. 86, referring to Goode, Wellborn & Sharlot, Texas Rules of Evidence, 1998, p. 286; Yellin, JM, “The history and current status of the clergy-penitent privilege” (1983) 23 Santa Clara LR 95, 111; and Note, “The clergy-communicant privilege: Blessed are the meek for they shall remain silent”, 1987, 65. N.C.L. Rev. 1390, 1395. 186 Wright and Graham, op cit., pp. 87–88. 187 See note 34 and supporting text.

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does not achieve its objective with the further statement that “sacramental or other religiously motivated communications are…likely to be made even in the absence of a privilege”.188 But this does not invalidate the suggestion that government is wise to avoid clashes which in Bentham’s words will yield benefits to the administration of justice which are at best “casual and rare”.189 However it must be conceded that the neither the legitimacy or futility rationales for a confidential religious communications privilege are convincing on their own. At most they add support to the idea that respect for free exercise of religion including the recognition of a religious communications privilege, is a value that any wise society will want to encourage. There is one further implication in Bentham’s criticism of the state that would not recognise a religious confession privilege that bears discussion in this policy context. While Bentham and other utilitarians are fairly subject to the criticism that their ideology sacrifices the social justice of minorities in favour of the larger interests of the majority, Bentham’s pause when it came to respect for the minority interests of those who wished to confess their sins to a priest, seems incongruous - and not only because as Wigmore notes, he opposed every other privilege and particularly legal professional privilege.190 Bentham believed that legal professional privilege as it is now sometimes called, was unjustifiable despite impressive precedential authority that reaffirmed it regularly even in his own age.191 This text about religious confession privilege is not the place to fully explore that reasoning. However it is noteworthy that Bentham would have agreed with the statement of Best CJ in Broad v Pitt192 in 1828, the year after he published his Rationale of Judicial

188

Wright and Graham, op cit., p. 88. See note 182 and supporting text. 190 Wigmore, JH, Evidence in Trials at Common Law, Revised by John T McNaughton, Boston, Little Brown, 1961, Vol. 8., p. 877. 191 For example, the statement of Lord Brougham in Greenough v Gaskell (1833) 1 My & K 98; 39 ER 618 is still cited as enduring authority for the foundation of legal professional privilege in the needs of the administration of justice. He said pp. 620–622 189

192

The foundation of this rule is not difficult to discover. It is not (as has sometimes been said) on account of any particular importance which the law attributes to the business of legal professors, or any particular disposition to afford them protection, though certainly it may not be very easy to discover why a like privilege has been refused to others, and especially to medical advisors. But it is out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on, without the aid of men skilled in jurisprudence, in the practice of the Courts, and in those matters affecting rights and obligations which form the subject of judicial proceedings. If the privilege does not exist at all, every one would be thrown upon his own legal resources; deprived of all professional assistance, a man would not venture to consult any skilled person or would only dare to tell his counsellor half his case. If the privilege were confined to communications connected with suits begun, or intended, or expected, or apprehended, no one could safely adopt such precautions as might eventually render any proceedings successful, or all proceedings superfluous. Broad v Pitt (1828) 3 Carr & P. 518; 172 ER 528

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Evidence, that “this confidence in the case of attornies is a great anomaly in the law”.193 Bentham’s apparent inconsistency where religious confession privilege is concerned is difficult to explain save for his observation that “the advantage gained by the coercion [of religious confessions from members of the clergy,] gained in the shape of assistance to justice, would be casual, and even rare”.194 Bentham does not appear to agree that the ‘administration of justice’ by lawyers and judges is as paramount a societal value as the legal profession have made it in their precedent rich common law. While he does not articulate his reasons fully, it is clear that Bentham thought society’s interest in protecting religious confession practice with a privilege was greater than any competing public interest judges might claim for the administration of justice. While Owen Dixon J conceded in the same context that society’s interests in the administration of justice did not trump all other values,195 it is easy to say that Bentham would not have agreed with Owen Dixon J’s statement that religious confession privilege should only be privileged if parliament had passed a statute to that end. Few judges have sought to explain why they regard ‘the administration of justice’ as such a pre-eminent value. One of the best efforts that has been made may well have been by McHugh J in Carter v The Managing Director, Northmore Hale Davy & Leake and others196 when explaining legal professional privilege. He wrote One rationale put forward for the protection of communications concerning pending or contemplated litigation is that the protection of such communications “assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline”. This rationale assumes that, without the protection of legal professional privilege, a client and his or her witnesses would often be reluctant to make a frank disclosure to the legal adviser of all relevant circumstances, including those of a damaging, embarrassing or incriminating nature. The existence of the privilege is therefore said to promote trust and candour between the client and the legal adviser and to assist the legal adviser to advise with confidence whether legal action should initiated, defended or compromised….The rationale that the doctrine is necessary for the “proper functioning of the legal system” or the “perfect administration of justice” hardly seems applicable to non-litigious communications between legal adviser and client unless the concepts of “the legal system” and “the administration of justice” are given extended and artificial meanings. Now that this Court has held that legal professional privilege is not a rule of evidence but a substantive rule of law, the best explanation of the doctrine is that it is “a practical guarantee of fundamental, constitutional or human rights”.

193

Broad v Pitt (1828) 3 Carr & P. 518, 519; 172 ER 528 Bentham, op cit., p. 591. 195 McGuinness v Attorney-General of Victoria (1940) 63 CLR 73, 102–103. 196 Carter v The Managing Director, Northmore Hale Davy & Leake and others [1995] 183 CLR 121. 194

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Chapter Twelve By protecting the confidentiality of communications between lawyer and client, the doctrine protects the rights and privacy of persons including corporations by ensuring unreserved freedom of communication with professional lawyers who can advise them of their rights under the law, and, where necessary, take action on their behalf to defend or enforce those rights. The doctrine is a natural, if not necessary corollary of the rule of law and a potent force for ensuring the equal protection of the law is a reality.197

He then quoted198 Deane J from Attorney-General (NT) v Maurice when Deane J had said that the efficacy [of legal professional privilege] as a bulwark against tyranny and oppression depends upon the confidence of the community that it will in fact be enforced…[and accordingly] is not to be sacrificed even to promote the search for justice or truth in the individual case or matter and extends to protect the citizen from compulsory disclosure of protected communications or materials to any court or to any tribunal or person with authority to require the giving of information or the production of documents or other materials.199

But none of this would explain for Bentham how it is that legal professional privilege promotes the administration of justice or why the administration of justice is such an ‘all-trumping value’ for lawyers. To say that legal professional privilege promotes the administration of justice by promoting candour between client and lawyer, is no explanation at all. The justice said to be enhanced by such private candour is a social or communitarian interest, whereas the protection afforded is purely private. Bentham would have protested the loss of justice to the party deprived of evidence by the decision affirming legal professional privilege in Attorney-General (NT) v Maurice. McHugh concedes the ‘administration of justice’ argument in defence of legal professional privilege is not that strong despite how many times it has been repeated, when he says that even this defence of the litigation limb of legal professional privilege does not work at all for the advice limb of the privilege. To justify the advice limb of legal professional privilege, McHugh J can only point to the idea of human rights which is perhaps why the High Court of Australia has finally said that legal professional privilege is a fundamental human right. While it is not clear that the High Court of Australia has retreated from the idea that legal professional privilege is essential to the perfect administration of justice, there does seem to have been a retreat from that incantation in search of a better justification. That successive Australian federal parliaments have continued to pass legislation abrogating legal professional privilege in their search for more perfect justice, also suggests that it is no

197 198 199

Ibid, pp. 160–161. Ibid, p. 161. Attorney-General (NT) v Maurice (1986) 161 CLR 475, 490.

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longer socially convincing to defend legal professional privilege by saying only that it is essential to the more perfect administration of justice. Bentham’s ancient but enduring point appears to have been that no society could claim to be a socially just society if it denied religious confession privilege. His great quest was for social justice. Like Marx after him, he considered that the vested interests of the influential classes including the legal profession, blinded them to the reality of the social injustice that was wrought by all manner of privilege including that legal professional privilege which protected some and not others. It is thus fair to opine that Bentham would say that the strongest utilitarian rationale for a confidential religious communications privilege is that such a privilege would promote social justice in society. He did not believe that other privileges promoted social justice. Religious confession privilege was not the domain of the wealthy. It was socially ecumenical. And to Bentham’s secular mind, the need to recognise it was simply selfevident. His references to what Wright and Graham have called the futility and legitimacy rationales for religious communications privilege, are merely his practical advocacy at work. That it was futile and despicably intolerant to deny religious confession privilege, merely demonstrated the self-evident truth that it must be allowed. Any government that recognised this deeply engrained religious practice would attract more respect from its citizens than a government that did not. The futility and legitimacy arguments in favour of religious communications privilege, thus boil down to the idea that a religious communications privilege is an essential element in a socially just society. Should Confessions Be Compelled at All? When discussing whether the importance of “the penitential relation”200 to society outweighs the “benefit to justice”201 that arguably flows from compelling the disclosure of penitential communications, Wigmore agrees with Bentham that “[t]he benefit [flowing from that disclosure] would be doubtful”.202 He explains: Even assuming that confession of legal misdeeds continued to be made, the gain would be merely the party’s own confession. This species of evidence [compulsory confessions]…ought in no system of law to be relied on as a chief material object of proof. In criminal cases it would be impolitic to encourage a resort to this too facile channel of confessions. In civil cases the ordinary process of discovery upon oath would be a sufficient equivalent.203

200 201 202 203

Wigmore, op cit., p. 878. Idem. Idem. Idem.

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Earlier in his work when discussing the historical and policy considerations that underlie the privilege against self-incrimination, Wigmore had stated that [t]he law…will not authorize compulsory disclosure if the situation falls within a class in which inhumane force is likely to be brought to bear to overcome the person’s reluctance to disclose or where the private interests affected are so great that it would be inhumane to compel it….What about the feeling that it is inhumane to force a witness to choose among the three horns of the triceratops – harmful disclosure, contempt, perjury?….the problem is not peculiar to the situation in which self-incriminatory disclosure is demanded. In one degree or another it is a problem inherent in the principle of compulsory testimony…the point which distinguishes the compulsion of self-incriminatory disclosures seems to be that the trilemma will probably be resolved by the witness in favor of perjury, and that is an ‘intolerable invasion of his ‘personality’ ’. The thought is that it is inhumane to force a religious witness to violate his sacred oath – to commit a crime against God. And presumably a kindred argument could be presented that it is inhumane to force any witness, religious or otherwise, to violate the ‘categorical imperative’ – to break faith with his rational commitment to truth-telling as a necessary moral principle [italics original].204

Still Wigmore was not completely convinced for he asked whether “it [was] clear that the cruelty incident to compelling a witness to harm himself outweighs the need for disclosure in enough cases to justify unqualified privilege whenever self-incrimination is involved?” Ultimately “a strong policy in favor of government’s leaving people alone, and the…complementary strong policy which demands that any contest between government and governed be a ‘fair’ one”205 appear to have decided the matter for Wigmore. For he later summarised both that compulsory confessions ought not be recognised or even licensed as a primary source of evidence in any system of law206 and he believed that religious confession privilege “has adequate grounds for recognition”.207 Wigmore is not alone in his belief that the compulsion of any form of confessional evidence is somehow beneath the dignity of a system of evidence gathering that aspires to be known as a system of law. Professor J. Noel Lyon and Henry E. Smith have effectively come to the same conclusion. Lyon has said that the best reason for a religious confession privilege is to prevent police and prosecution using evidence if it was extracted by any form of duress.208 This principle follows from the rule that

204 Ibid, pp. 315–317, citing in particular United States v Grunewald 233 F. 2d 556, 591 (2d Cir. 1956) (Frank, J., dissenting), rev’d, 353 U.S. 391 (1957). 205 Ibid, p. 317. 206 See note 203. 207 Ibid, p. 878. 208 Lyon, JN, “Privileged Communications - Penitent and Priest”, (1964–65) 7 Criminal LQ 327.

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[a] confession of crime made to a person in authority will not be admitted in evidence unless it is shown to have been made voluntarily…Voluntary…means without fear of prejudice or hope of advantage exercised or held out by a person in authority. By this standard confessions to priests would never be voluntary since the very basis of the priest’s authority is fear of purgatory and hope of redemption.209

This logic did not preclude the admission of the evidence of Richard Gilham’s repeated confession to the Gaoler, Mayor and Town Clerk in 1828 supposedly induced by the counsel of a chaplain.210 But Lyon would likely have distinguished that case since the officials who actually received the confession had not extended the inducements nor exerted any pressure on the prisoner. In any event, Lyon points to two closely subsequent decisions in England where bancs of judges considering similar appellate questions, confirmed that very simple encouragements by surgeons to tell the truth rendered the confessions to them that followed inadmissible.211 And indeed in R v Kingston decided just two years after R v Gilham, two of the same judges as were involved in the Gilham decision212 found that the surgeon’s admonition to “tell all you know”213 since “you are here under suspicion of this” did constitute214 “an inducement to confess untruly”215 and the conviction was overturned. Henry E. Smith has followed Wigmore in stating that the idea that compulsion was unacceptable, evolved in response to the excesses of the prerogative courts of the Tudors and Stuarts including Star Chamber. By the late eighteenth century Courts had accepted that “a confession forced from the mind by the flattery of hope, or by the torture of fear, c[a]me…in so questionable a shape when it is to be considered as the evidence of guilt that no credit ought to be given to it”.216 But in the twenty-first century context where military commissions have accepted evidence extracted by torture at Guantanamo Bay and when corporate prosecutors insist on the waiver of all legal professional privilege when investigating alleged malfeasance under the Sarbanes Oxley legislation, the suggestion that a confidential religious communications privilege can be justified because compulsorily acquired confessional evidence will never be admissible, seems quaint and rather antiquarian. And while Nussbaum might lament our forgetting of the importance of this libertarian need to prevent prosecutors from compelling the disclosure of confessional evidence,217 still it does not seem very compelling however unfortunate that may be. 209 210 211 212 213 214 215 216 217

Ibid, p. 328. R v Gilham (1828) 1 Moody Cr Cas 186; 168 ER 1235. R v Kingston (1830) 4 Car & P. 387; R v Garner (1848) 3 Cox C.C. 175. Parke and Littledale as noted by Patteson J in R v Garner. As quoted by Patteson J in R v Garner. Idem. Idem. See note 42. See notes 122 to 126 and supporting text.

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A religious communications privilege can be justified by theology and particularly by Christian theology. The confidentiality of the clergy is said to be essential to the confidence of the membership in their clergy. Simon Fisher describes this need for trust and confidence as “the social value of confidentiality” in the religious context.218 Tiemann and Bush state that confidentiality is an essential ingredient of “good pastoral care”.219 And Alderson B noted in 1853 that confidentiality was as essential to the effectiveness of the spiritual counselling relationship as it was to the maintenance of trust and confidence between attorney and client.220 But the 16th century canonist Mascardus, identified the purely theological reason for the privilege most directly when he explained that confession is the religious rite in Christianity by which an individual becomes reconciled to God.221 To confess to a member of the clergy is to confess to a proxy for God. The proxy does not hear the confession personally but only on behalf of God. The very thought that one might force God to disclose a confession in a courtroom or elsewhere is blasphemous. Of course such reasoning alone is not likely to have great convincing power in a pluralist society where the Christian doctrine of atonement and the need for reconciliation to God is a view held by a minority. Are there any other purely theological arguments that can justify religious communications privilege and would such arguments have any convincing power in liberal democracies in the twenty-first century? The theological arguments that are used to justify freedom of religion generally may be considered to see whether they provide any compelling defence for religious confession privilege since it has already been observed that the law will only foster a religious communications privilege to the extent that it favours freedom of religion generally. But it is submitted that such arguments are likely only useful in a secular society to the extent that they can inform or flesh out secular arguments in favour of such a privilege that already have convincing power. After observing that Christianity does not have a great track record of tolerating religious freedom when it has held the practical reigns

218 Fisher, S., “Clergy confidentiality and privileges”, Law and Religion, Radan P., Meyerson, D., Croucher, R.F., Eds., Routledge, Taylor & Francis Group, London and New York, 2005, p 253. 219 Op cit., p. 23. 220 R v Griffin (1853) 6 Cox CC 219. 221 Quoted by Taylor, JP, A Treatise on the Law of Evidence as Administered in England and Ireland, London, A Maxwell & Son; Dublin, Hodges & Smith, 1848, p. 619; Hageman, JF, Privileged Communications as a Branch of Legal Evidence, Princeton, New Jersey, Honeyman & Co, 1889, p. 124; Matthews, JB, and Spear, GF, A Treatise on the Law of Evidence as Administered in England and Ireland by His Honour the late Judge Pitt Taylor, 11th ed, London, Sweet & Maxwell, 1920, p. 623; and Winckworth, P, The Seal of the Confessional and the Law of Evidence, London, SPCK, 1952, p. 8.

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of political power, in their book “Religious Freedom in the Liberal State”, Ahdar and Leigh222 enumerate eight Christian theological reasons why religion should be tolerated in law. They are: “the principle of voluntariness…. [which holds that c]oerced participation in religion is disastrous and wholly unacceptable”223 restating Locke’s insistence that religious worship was valueless unless it was voluntary;224 “the Christological injunction”225 which is that since Christ neither coerced nor visited retribution upon anyone, nor should those who seek to follow Him; “the persecution injunction…[which holds that it is] a denial of the [Christian] faith and an affront to God”226 to persecute anyone; “the fallibility principle”227 which at its most gracious acknowledges that any practising Christian could be wrong, at least in part, so that all Christians ought to allow all other people the right to worship God according to the dictates of their own conscience; “eschatological or providential confidence”228 which again, at its most generous, holds that since truth will eventually prevail, Christians can afford to be patient; “the ecumenical or universal principle”229 which holds that all religions hold some truth and that Christians are therefore justified in accommodating the work of all other religions; “the principle of the unrestricted conscience”230 which acknowledges that “[a]ll persons…must have the liberty to pursue the truth as they perceive it”231; “and finally, the dual authority principle”232 which holds that because the conscience has its life in a spiritual domain beyond the jurisdiction of any earthly government, no earthly government can or ought to seek jurisdiction over it. Since religious communications privilege is parasitic upon freedom of religion generally, in the Christian mind, these arguments should also be compelling reasons why there should be a religious communications privilege. But that is probably as far as these arguments can go - to give believing Christian readers some additional reasons why they should support a religious communications privilege. For theological reasons, in their very nature, are unlikely to have significant convincing power in the public square in modern liberal democracies unless those arguments are recast in more secular terms. Ahdar and Leigh again have summarised the four principal secular arguments which

222

Oxford University Press, Oxford, 2005. Ibid, p. 36. 224 Locke, J., A Letter Concerning Toleration, 1689. To read all of Locke’s letters on toleration see John Locke, The Works of John Locke in Nine Volumes, 12th ed., Rivington, London, 1824, Vol. 5. 225 Ahdar and Leigh, op cit, p. 36. 226 Idem. 227 Idem. 228 Idem. 229 Idem. 230 Ibid, p. 37. 231 Idem. 232 Idem. 223

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favour religious freedom generally. They are: the negative idea that because the “[s]upression of minority religious opinion and practice may lead to social disunity, turmoil and even war”,233 religious liberty is an essential ingredient for “civil peace”;234 the more positive idea most famous from De Tocqueville235 but more recently from Professor Stephen Carter236 that “religions…can serve a valuable role as ‘independent mediating institutions’237 operating as ‘bulwark[s] against government tyranny”;238 that religious teaching “foster[s]… important civic virtues, such as law-abidingness, honesty, thrift and selfrestraint”;239 and that the somehow self-evident need to “treat…citizens with equal respect”240 includes the recognition of their right to “unconstrained selfdetermination…[including] freedom of conscience”241. But they note that these secular justifications for freedom of religion are “problematic…ambiguous…[and even] contentious”242 since the personal autonomy justification for religious freedom in particular “may involve squeezing religious practice and thought into a liberal mould that is alien to the thinking or experience of the person or religion involved”243 and arguably “mis-describ[es] the nature of religious conviction”.244 In this chapter, it has essentially been concluded that the strongest policy justification for religious confession privilege is society’s interest in preserving freedom of religion generally. If as Wigmore might say, society has no interest in ‘sedulously fostering’ freedom of religion, then society will have no interest in ‘sedulously fostering’ a religious communications privilege. Professors Jeremy Waldron and Michael Perry have both suggested that human rights generally (including freedom of conscience and belief encompassing freedom of religion) cannot be satisfactorily justified in purely secular terms.245 In essence, they concede that the religious ideas of the fatherhood of God and the brotherhood of man are the only moderately convincing reasons so far

233

Ibid, p. 52. Idem. 235 De Tocqueville, A., Democracy in America, David Campbell Publishers Ltd, Everymans Library, London, Originally published 1830, copyright 1945, renewed 1972, Vol 1, pp. 303–308, Vol 2, pp. 20–28. 236 Carter, S., The Culture of Disbelief, Anchor Books and Doubleday, New York, London, Toronto, Sydney, Auckland, 1993, p. 2. 237 Ibid, p. 37 as quoted by Ahdar and Leigh. 238 Ahdar and Leigh, op cit., p. 55 quoting in part, Carter, op cit, p. 35. 239 Ahdar and Leigh, op cit., p. 56. 240 Ibid, p. 58. 241 Idem. 242 Ibid, p. 64. 243 Idem. 244 Ibid, p. 62. 245 Waldron, J., God, Locke and Equality; Christian Foundations in Locke’s Political Thought, Cambridge University Press, Cambridge, 2002, pp. 235–243; Perry, M.J., The Idea of Human Rights: Four Inquiries, Oxford University Press, New York and Oxford, 1998. 234

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expressed which explain why anyone would protect the rights of another human being. Even John Rawls’ supposedly secular ‘original position’ from which every thinking soul would choose equalitarian rights as the moral framework for life, has a theological dimension though none is claimed.246 And of course, neither this chapter nor this book is the place to tease out that discussion. But the underlying question that all are trying to answer is – why it is that many human beings think that human rights and particularly the right to freedom of religion as a part of universal freedom of conscience and belief, are justified or necessary in an ideal society? And the answer seems to be that if we do not accept that the fatherhood of God and the brotherhood of man are satisfactory reasons to explain this western liberal democratic obsession, then all that remains is the pragmatic reason that the accommodation of this freedom is essential if we are to avoid civil strife in the long term. Professor John Garvey suggests in the US context that freedom of religion can be justified simply because we think religion is a good247 and that is why the US constitutional framers placed it in their bill of rights. But when one reviews his following logic, it is always buttressed by the idea that “freedom of religion prevents political strife”.248 Indeed he specifically renounces the alternate semitheological idea that the reason religion is a good is because it protects human agency and autonomy and specifically the right to make choices249 which Ahdar and Leigh have also noted has its problems.250 Once again however, we come full circle. Any meaningful policy justification for a religious communications privilege depends upon society’s interest in fostering freedom of religion. But this brief foray into theological considerations does afford the additional insight that the best secular reason so far identified explaining why an informed society is likely to want to sedulously foster freedom of religion is because the protection of that freedom prevents civil and political strife. It follows then, that since a religious communications privilege is a fundamental religious practice for many religions in

246 Waldron, op cit, does not suggest that Rawls’ work has a theological dimension. But the idea that one might contemplate life and social interaction in a future life on earth from an ‘original position’ resonates which many theologies including those which posit that the currently human soul passes through many phases of existence all of which have an influence on the phase to follow. 247 See for example, Garvey J., What are Freedoms for?, Harvard University Press, Cambridge Massachusetts and London England, 1996. 248 Garvey J, “Why should religious freedom have distinctive constitutional protection?”, The First Amendment, The Free Exercise of Religion Clause, Berg, T.C., Ed., Prometheus Books, Amherst New York, 2008, p. 121. 249 Idem, p. 122. 250 Op cit., pp. 57–64. In particular and as noted above, Ahdar and Leigh explain that personal autonomy alone does not explain why a Jewish rabbi in the US military has a better reason to wear his yarmulke than a cowboy hat (citing a John Garvey example) (ibid, p. 61) and they are concerned that personal autonomy does not explain the sense of duty which lies behind many religious beliefs.

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contemporary western society, then to at least the extent that those societies want to protect free religious practice, they will also want to protect a religious communications privilege as an important societal value. Conclusion No one argument by itself adequately justifies the existence of confidential religious communications privilege as a matter of policy. But when all these different threads of reason are weighed together, it seems hard to disagree with L’Heureux-Dubé J that “it is more in line with”251 the weight of all these rationales, the spirit of enduring constitutional respect for free exercise of religion, “and the goal of assuring the certainty of law, to recognize a pastor-penitent category of privilege”252 than to leave the matter as one for discretionary judicial decision making on a case-by-case basis. Wright and Graham do not believe that what they call the “instrumental rationales for the penitent’s privilege”253 are “wholly convincing”.254 They summarise that the enduring “noninstrumental” idea that this privilege is most properly and convincingly founded in freedom of conscience values, seems to be the most compelling reason for its existence. Ultimately that concession is a recognition that Wigmore was right to state that an evidentiary privilege must be premised in some value that the society concerned wants to “sedulously foster” – this despite the fact that Wright and Graham began their analysis with the suggestion that Wigmore’s historical treatment of religious confession privilege was not “so decisive” as he made appear.255 Wigmore may have understated the historical arguments for the existence of this privilege at common law, but ultimately his sense of the necessary foundation for any privilege was accurate. But it remains disconcerting as L’Heureux-Dubé J intoned, to say in effect, that this particular privilege is a relative value and will only endure so long as society values free exercise of religion. Somehow, we want to say with Brennan, that free exercise of religion is or ought to be less derogable than that. It seems ‘necessary’ with McNicol to say that despite the relativism of post-modern philosophical thought, this aspect of freedom of conscience as a recognised international human right should be entrenched beyond repeal. But the truth is, that without recourse to theology, we simply cannot make that argument stick. Our only reassurance may be Peter L. Berger’s earlier observation256 that

251 252 253 254 255 256

R v Gruenke [1991] 3 SCR 263, 311. Idem. Wright and Graham, op cit., p. 88. Idem. Ibid, p. 30. Supra, p. 327.

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The world today is massively religious, is anything but the secularized world that had been predicted….by so many analysts of modernity.257

Though philosophers have been predicting that religion was certain to wither away and die completely when either the communistic or liberal society achieved maturity, the truth is that religious values including the need for respect and toleration seem to be even more important in the twenty-first century than they have been before.258 Since Bentham asserted the need for religious toleration and the recognition of religious confession privilege as a protected legal value in the age of utilitarianism, none of this is really surprising. And while he did make some secular political arguments in favour of religious confession privilege with “legitimacy” and “futility” limbs259 as Wright and Graham have called them, Bentham’s essential justification for the privilege was simply that social justice required it – that the coercion of religious conscience was “altogether inconsistent and incompatible [with any idea of toleration]”.260 That phrase from Bentham continues to capture the essential germ of the reason why legislatures have almost universally passed a religious confession privilege statute if a judge ruled that there was no religious confession privilege at common law. Sadly, the fact that so many western legislatures have had to pass religious confession privilege statutes is also a commentary on the susceptibility of judges to the same prejudices which are the lot of all human beings.

257 “The Desecularization of the World: A Global Overview”, Berger, Peter L. in The Desecularization of the World: Resurgent Religion and World Politics, Berger, Peter L. Ed., 1999, Published jointly by the Ethics and Public Policy Center and Wm. Eerdmans Publishing Co., p. 9. 258 Idem. 259 Wright and Graham, op cit., pp. 84–88. 260 Bentham, op cit., p. 588.

CONCLUSION The purpose of this book has been to review the familiar assertion that religious confession privilege does not exist at common law, against the historical materials that are used to support that assertion. The materials used have included the historical, secular and canonical practices which formed the common law before case reporting evolved, as well as detailed consideration of all the cases which have been discussed in connection with religious confession privilege. The book began by observing that from the beginning, the treatment of religious confession privilege in evidence law texts, was misdirected by three foundational errors, and that misdirection has never been cured. Evidence Texts Since texts about evidence law began to appear at the beginning of the nineteenth century, most of them have denied the existence of religious confession privilege. The first of those denials came in what Stone and Wells1 have called “the pioneering books on evidence in our modern sense”2 by Peake3, Phillipps4 and Starkie.5 But careful consideration of those texts in chapter one,6 suggests that it was Peake who arrived at that conclusion, and that the others followed uncritically without apparent independent review of the reports of the cases Peake cited for his proposition. There is irony in the template that Peake thus set. For Peake himself was also the reporter of the only reported English case in his generation which treated religious confession privilege at all,7 and Peake preferred the unreported conclusion about religious confession privilege of

1 Stone, J, Evidence, Its History and Policies, Revised by WAN Wells, Sydney, Butterworths, 1991 2 Ibid, p. 36. 3 Peake, T, A Compendium of the Law of Evidence, London, E&R Brooke and J Rider & E Rider, 1801. 4 Phillipps, SM, A Treatise on the Law of Evidence, London, by E & R Brooke and J Rider and by E Rider 1814. 5 Starkie, T, A Practical Treatise of the Law of Evidence and Digest of Proof in Civil and Criminal Proceedings, London, J & WT Clarke, 1824. 6 Supra, pp. 16–18. 7 Du Barré v Livette (1791) 1 Peake 108; 170 ER 96.

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a circuit judge8 only cited in arguendo9 in that case10 over the contrary opinion of the Chief Justice11 in the case that he was actually reporting. But ‘Peake’s irony’ is only one among many ironies that have shaped the law of evidence with respect to religious confession privilege. For it was not only contemporary text writers who followed his conclusion. Indeed, only Best in 1849,12 Badeley in 1865,13 Nokes in 1950,14 Winckworth in 1952,15 and McNicol in 199216 doubt the conclusion that there was no religious confession privilege at common law, and they do not trace the error to Peake. Best doubted the standard text denials of religious confession privilege, since he could see that religious confession privilege existed before the Reformation.17 Badeley said that even if the common law did turn its face against the religious practices of Roman Catholicism, that injustice had been cured by legislative reform since and in any event, confession in Anglican practice had always been protected.18 Nokes pointed out that many of the cases cited against religious confession privilege since Anon in 169319 were irrelevant in any consideration of the question,20 though he noted that there had been many cases containing judicial statements which denied the privilege. Winckworth agreed with Stephen’s conclusion that the question of whether religious confession privilege existed had never been “solemnly decided”21 in an English court, though unlike Stephen, Winckworth did not find the authority against the privilege compelling enough to opine that it did not exist. And Nichols considered that there is a “paucity of judicial authority to support the claim that there is no privilege arising out of the priest-penitent relationship”.22 8

Buller J. Baron Alderson used this phrase to describe the authority of the proposition that there was no religious confession privilege after Peake’s report of Du Barré v Livette when, as one judge on an appellate panel, he similarly doubted in arguendo submissions made by counsel in Attorney-General v Briant (1846) 15 LJ Exch 265, 271. Note that while there are various reports of Attorney-General v Briant, only the LJ Exch report carries the Alderson discussion with counsel. 10 R v Sparkes, unreported but referred to in Du Barré v Livette (1791) 1 Peake 108; 170 ER 86. 11 Kenyon LCJ. 12 Best, WM, A Treatise on the Principles of Evidence, London, S. Sweet, 1849. 13 Badeley, E, The Privilege of Religious Confessions in English Courts of Justice considered in a letter to a Friend, London, Butterworths, 1865. 14 Nokes, GD, “Professional Privilege”, 66 LQR 88. 15 Winckworth, P, The Seal of the Confessional and the Law of Evidence, London, S.P.C.K., 1952. 16 McNicol, SB, Law of Privilege, Australia, The Law Book Company Ltd, 1992. 17 Best, op cit, pp. 458–460. 18 Badeley, op cit, p. 32. 19 Anonymous (1693) Skin 404; 90 ER 179. 20 Nokes, op cit, pp. 96–97. 21 These words come from Sir James Stephen’s Digest of the Law of Evidence in 1876 (London, MacMillan and Co, 1876, p. 171), but are reflected in Winckworth’s statement that “the question has never really been raised in any English court since the Reformation” (Winckworth, op cit, p 15). 22 McNicol, op cit, p. 334. 9

Conclusion 359 One of the other historical ironies in the treatment of religious confession privilege was Park J’s denial that religious confession privilege existed in R v Gilham.23 That denial is ironic on three counts. First, because his only cited authorites were texts written by Peake and Starkie which both rested upon Peake’s flawed commentative conclusion24 from R v Sparkes as cited and disapproved by Kenyon LCJ in Du Barré v Livette.25 Secondly, because Gilham was not a case about religious confession privilege at all,26 though it was so cited in commentary between 1828 and 1881.27 And thirdly, because when Best CJ, six weeks later,28 reacted to the news that Park J had disapproved Best CJ’s unreported decision in favour of religious confession privilege in R v Radford 29 in 1823 with his comments in Gilham, Best CJ apparently did not even read the report of Park J’s judgement, but simply responded to what he thought had been decided with a new and probably unnecessary distinction of his own. The essence of all of the irony is that the judges and text writers who are supposed to be expert in the reading of cases to extract their precedential common law principles, in the case of religious confession privilege, have been united by their common failure to do so. For in a yet further irony, it is fair to conclude that the common law of religious confession privilege as a portion of the law of evidence has been developed and sustained far more by a form of hearsay than it has been by close precedential analysis. That conclusion is strengthened when Sir George Jessel MR’s contribution to the common law with regard to religious confession privilege is analysed.30 For though Winckworth suggested that Sir George Jessel also followed what

23

R v Gilham (1828) 1 Moody 186; 168 ER 1235. R v Gilham (1828) 1 Moody 186, 198; 168 ER 1235, 1239 where Park J criticised Best CJ’s R v Radford unreported affirmation of religious confession privilege with the statement that “his lordship could not have excluded this evidence because it was a breach of confidence in the clergyman to give it, because a minister is bound to disclose what has been revealed to him as matter of religious confession, Rex v Sparkes, cited Peake, N.P.C. 79, 1 Starkie on Evidence, 105.” 25 Du Barré v Livette (1791) 1 Peake 108; 170 ER 96. 26 Technically, the ratio decidendi of R v Gilham affirms that confessions of crime to third parties (the mayor and others) were inadmissible if they had arguably been induced by spiritual advice provided by a member of the clergy. 27 The dates respectively of the decisions in R v Gilham and Wheeler v LeMarchant (1881) 17 Ch D 675; 50 LJ Ch 793; [1881–5] All ER 1807. After 1881, Wheeler v LeMarchant is cited by most text writers as the leading authority against religious confession privilege, rather than R v Gilham. 28 In his decision in Broad v Pitt (1828) 3 Carr & p. 518; 172 ER 528. 29 Unreported and only referenced in the Gilham report as an 1823 decision of Best CJ on circuit at the Exeter Summer Assizes. 30 Sir George Jessel opined twice against the existence of religious confession privilege at common law while he sat as Master of the Rolls in the English Court of Appeal. First in Anderson v Bank of British Columbia (1876) LR 2 ChD 644, 650–651, and secondly in Wheeler v LeMarchant (1881) 17 Ch D 675; 50 LJ Ch 793; [1881–5] All ER 1807. His obiter dicta comments against religious confession privilege in the second case are cited much more frequently than those in the first, though he only cited Lord Cottenham’s authority in the first case. 24

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Winckworth called “Peake’s dictum”,31 the only authority Sir George Jessel cited for his obiter comments denying the existence of religious confession privilege at common law came from Lord Cottenham’s judgement in Reid v Langlois,32 and Lord Cottenham referenced only “professional men” in a case about legal professional privilege. Sir George Jessel MR and James LJ who sat with him in Anderson v Bank of British Columbia may have correctly expressed a late nineteenth century English judicial view that legal professional privilege was the only so-called professional privilege33 when they both denied the existence of religious confession privilege at common law. But since their obiter dicta comments against religious confession privilege have not been applied in any binding precedential way ever since, and since many British commonwealth jurisdictions have enacted statutes to confirm religious confession privilege since their denials,34 their statements represent dubious additional authority for Peake’s 1801 proposition. Wigmore’s analysis of religious confession privilege at common law commencing in 1904,35 was more balanced than Peake’s had been a century earlier. For Wigmore acknowledged that there might have been a privilege before the Reformation.36 However, his failure to identify exactly how that privilege was extinguished by the time of the Restoration is unsatisfactory.37 Wigmore’s analysis is also exposed by Wright and Grahams’ careful suggestion that he “exaggerated … the impact of the authorities he cites”38 after the Restoration, for it is simply not possible to work out which of the “dozen cases”39 he cites are what he called “two decisive rulings”40 against religious confession privilege. While Wright and Graham admit that Wigmore correctly characterises four of his authorities as dicta, they diminish the authority of his opinion when they point out that three other cases he does not label as dicta “seem to 31

Winckworth, op cit, p. 14. Reid v Langlois (1849) 1 Mac & G 627; 41 ER 1408. See also chapter one, notes 82–86 and supporting text. 33 Wright and Graham suggest that one possible explanation for the denials of religious confession privilege in texts about English common law is that “[b]y the time Catholics in England had regained their civil rights and could claim the privilege, English law had already set its face against all privileges other than the attorney-client privilege” (Wright, CA, and Graham, KW, Federal Practice and Procedure: Evidence, 3rd ed, St Paul Minnesota, West Publishing Co, 1992, § 5612, p. 42). 34 See chapter six, note 179 and supporting text. 35 The first edition of his monumental work on Evidence Law was published in 1904 (Wigmore, JH, A Treatise on the Anglo-American System of Evidence in trials at common law: including the statutes and judicial decisions of all jurisdictions of the United States and Canada, Boston, Little Brown, 1904). 36 Wigmore, JH, Evidence in trials at common law, Revised by John T McNaughton, Boston, Little Brown, 1961, Vol 8, p. 869. 37 See discussion in chapter six, pp. 155–160. 38 Wright and Graham, op cit, § 5612, p. 41. 39 Ibid, p. 39. 40 Ibid, p. 40, quoting Wigmore, JH, Evidence in trials at common law, Revised by John T McNaughton, Boston, Little Brown, 1961, Vol 8, p. 869. 32

Conclusion 361 fall in the same category”;41 that two more of Wigmore’s authorities are the non-precedential decisions of trial courts, one of which was unreported, and that one of his possibly “decisive rulings” is an Irish case that manifests significant religious prejudice.42 But like Peake a century earlier, Wigmore’s opinion against the existence of religious confession privilege has drawn with it a host of uncritical followers. Though Wright and Graham conclude that the privilege is undeveloped in England,43 they summarise their view that the judicial and academic authority against the privilege “is seldom impressive, usually consisting of one of two judicial opinions or a citation to Wigmore”44 – and the writer has identified much more uncritical citation of Wigmore’s authority for the non-existence of religious confession privilege than Wright and Graham name.45 Wigmore’s conclusion that there is no religious confession privilege at common law is the more surprising since he clearly felt that the case for such a privilege was morally compelling.46 And indeed his “four fundamental conditions … recognized as necessary to the establishment of a privilege against the disclosure of communications”47 have proven a foundation for the recognition of religious communication privilege at common law in both Ireland48 and Canada49 despite the lack of compelling authority in England. After showing that the early text writers could not be relied upon to provide a balanced view of even the common law materials that they did review, I moved on to consider in detail all the materials that must be reviewed if one is to come to an authoritative conclusion about the existence of religious confession privilege in English law before the Reformation and thereafter. That research included careful analysis of what Wigmore called “an indecisive incident in the Jesuit trials under James I,50…a statute of much earlier date and of ambiguous purport,51 together with the general probabilities to be drawn from the recognition of Papal ecclesiastical practices prior to Henry VIII”.52 41

Wright and Graham, op cit, pp. 39–40. Idem. 43 Ibid, p. 41. 44 Ibid, p. 29. 45 See Introduction, notes 5–7 and supporting text. Wright and Graham cite only “Comment, Religious Confidentiality And The Reporting of Child Abuse: A Statutory and Constitutional Analysis” (1987) 21 Col.J.L. & Soc. Prob.1, 19 and “Comment, Federal Rules of Evidence and The Law of Privileges” (1969) 15 Wayne L. Rev. 1286, 1341. 46 After analysing the case for recognition of religious confession privilege according to his own “four canons”, he states “[o]n the whole … this privilege has adequate grounds for recognition” (Wigmore, JH, Evidence in trials at common law, Revised by John T McNaughton, Boston, Little Brown, 1961, Vol 8, pp. 877–878). 47 Wigmore, op cit, Vol 8, p. 527. 48 Cook v Carroll [1945] Ir. Rep. 515. 49 R v Gruenke [1991] 3 SCR 263. 50 Wigmore here referred to Garnet’s case (1606) 2 Howell’s State Trials 217. 51 Wigmore here referred to the Statute Articuli Cleri in 1315 (9 Edward II St.1). 52 Wigmore, op cit, Vol 8, p. 869. 42

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I began chapter two by explaining that one must set aside modern paradigmatic thinking to understand English society and law before the concepts of ‘state’ and ‘common law’ evolved their modern meanings. In particular, I explained first, that church and state were not separated in medieval minds, since ecclesiastical jurisdiction included what are now considered the very secular questions of marriage, bigamy, divorce and adultery, estate administration, crime and contract;53 and secondly, that the modern idea that the common law is what one finds in the cases, is a far from adequate explanation of the complex relationship that existed between statutes (as the king’s quasi judicial settlement of petitions addressed to him), custom, the canon law as well as the decisions of secular and ecclesiastical courts.54 Since Sir Edward Coke confirmed that the Statute Articuli Cleri in 1315 was authority for the existence of religious confession in the fourteenth century, I analysed the relevant provisions for two purposes. First, I explained how statutes before the separation of church and state at the Reformation were used to express and settle the common law, rather than to simply create new positive law, as is the modern expectation.55 Secondly, I tested his conclusions both that religious confession privilege clearly existed from 1315 through to 1606, and that it had been abrogated in cases of treason.56 Since neither Coke as Attorney-General and Prosecutor nor any of the Nine Commissioners who sat with the jury in Garnet’s case denied the existence of religious confession privilege which Henry Garnet asserted as his defence, it seemed odd to suggest that the decision was “ambiguous”57 where the existence of the privilege was concerned. Certainly as a trial court decision made by a jury, Garnet’s case does not represent a precedential authority affirming religious confession privilege, but it is disingenuous to suggest that the efforts of Coke and the Commissioners to show that Garnet had not received a sacramental confession somehow denied that religious confession privilege would have been a legitimate defence on more appropriate facts. Similarly, Coke’s reflective commentary twenty years later,58 in which he preferred to interpret the decision as an authority for a treason exception to religious confession privilege (in effect affirming that the defence was good but that it failed because of the exception), is hardly “ambiguous”. Clearly, early seventeenth century judicial opinion accepted that

53

Supra, chapter two, pp. 31–36. Supra, chapter two, pp. 36–42. 55 Idem. 56 Supra, chapter two, pp. 42–54. 57 Wigmore, op cit, Vol 8, p. 869. 58 Coke, Sir E, The Second Part of the Institutes of the Laws of England, New York, Garland Publishing Co, 1979, p. 629. 54

Conclusion 363 sacramental religious confessions should not be adduced as evidence in cases that did not involve treason. Canon Law In chapter three, I traced the evolution of the seal of confession in Roman Catholic canon law and showed how that seal was respected in ‘secular’ laws passed before Norman times.59 After the twenty-first canon of the Fourth Lateran Council of 1215 affirmed that the seal of confession was binding throughout the Holy Roman Empire, confirming much earlier respect for confessional secrecy in England which had been endorsed by William the Conqueror’s appointees as Archbishop of Canterbury,60 it is not possible to find any suggestion that confessional secrecy was ever doubted until the English Reformation under Henry VIII. History which affirms secular respect for canon law between the time of William the Conqueror and Henry VIII includes Henry II’s penance and grudging respect for the laws of the church after the murder of Thomas A’Becket in 1170;61 the fact that most of the king’s secular judges were priests until Pope Innocent IV (1243–1254) outlawed such appointments;62 and Edward II’s recognition of confessional secrecy in the Statute Articuli Cleri in 1315. But since there has been considerable debate about the place of confession in Anglican practice after the English Reformation, in chapter three I also considered the effect of the introduction of conditional language into the first Anglican canon mandating confessional secrecy in 1603, and to the respect due Anglican canon law in English secular courts since. The reason why some modern commentators do not expect English secular courts to respect confessional secrecy is because confession became voluntary after the English Reformation.63 But the contrary view holds that the voluntariness of Anglican confession has not diluted the priest’s obligation to keep confessional secrets at all.64 That no English judge when mentioning religious confession privilege has ever referenced the 113th 1603 Anglican canon appears to underscore the first view. But there never has been an English case 59

Supra, chapter three, pp. 66–67. Supra, chapter three, pp. 64–65. 61 Supra, chapter three, p. 70. 62 Supra, chapter three, pp. 70–72. 63 For example, Nokes doubts “in the twentieth century” whether a clergyman would be ecclesiastically punished for breaching confessional secrecy under compulsion by a secular court (Nokes, GD, “Professional Privilege” [1950] 66 LQR 88, 101–102). Norman Doe thinks that the secular courts do not need to respect Anglican canonical secrecy because the 113th canon in 1603 is only phrased as a recommendation (Doe, N, The Legal Framework of the Church of England, Oxford, Clarendon Press, 1996, p. 353). 64 See for example Blunt, JH, The Book of Church Law, 10th ed, London, New York and Bombay, Longmans Green & Co, 1905, p. 173, and Bursell, Judge RDH, “The Seal of the Confessional”, Ecclesiastical Law Journal 1 (7) (1990) 84, 87. 60

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that raised the point for precedential decision either. History confirms that Henry VIII found it politically expedient to retain the Roman Catholic canon law intact, including that in relation to confession.65 And though confession certainly became voluntary, when a body of uniquely Anglican canon law was finally issued shortly after the death of Elizabeth I, the obligation of secrecy remained, though conditional language was added which seemingly confirmed Coke’s later proposition that there was a treason exception to religious confession privilege.66 When Bursell’s belief that Nokes is mistaken in his view that a member of the clergy would not be censured for breach of confessional secrecy67 is coupled with Bursell’s observation that modern statutory discretions allow judges “to exclude evidence … whether by preventing questions from being put or otherwise”,68 it seems fair to conclude that English courts have tools available which they will use to prevent the unnecessary friction between church and state69 which would arise if questions about confessional secrecy were pressed in secular courts. Bursell also makes the understated practical point that the absence of English cases about religious confession privilege is in no small part the consequence of continuing clerical unwillingness to disclose that confessions have been heard at all.70 But what does all this canonical debate mean? Was Wigmore right to doubt that “the general probabilities to be drawn from the recognition of Papal ecclesiastical practices prior to Henry VIII”71 were insufficient to prove that confessional secrecy was recognised in English law before the English Reformation? While there may be some doubt that even Anglican canon law affirming religious confession privilege would prevent a contemporary English court from compelling confessional evidence, that cannot be a correct statement of the position in the sixteenth century. Common Law In chapter four I then reviewed each English case that has either mentioned religious confession privilege or has been cited in commentary as authority in 65

See discussion supra, chapter three, pp. 76–77. Note also that the Act for the Submission of the Clergy in 1535 (25 Henry VIII, c.19) forbade the enactment of new church canon law “except in convocations summoned by the King’s writ”, and the Act of Six Articles in 1539 (31 Henry VIII, c.14) reaffirmed Roman Catholic doctrine as the doctrine of the by now separate Church of England. 66 Note that Coke was as reluctant to cite Anglican canon law authority for his treason exception to religious confession privilege in his magnum opus on the common law as he was to cite French Catholic canon law authority (see discussion in chapter two, supra, p. 52). 67 Bursell, op cit, pp. 107–108. See also note 63 supra. 68 Section 82(3) of the Police and Criminal Evidence Act, 1984 as cited in Bursell, op cit, p 109. 69 McNicol, S, Law of Privilege, Australia, Butterworths, 1992, pp. 330–331, 337. 70 Bursell, op cit, p. 89. 71 Wigmore, op cit, Vol 8, p. 869.

Conclusion 365 relation to religious confession privilege. Because the text writers were so certain that there was no religious confession privilege at common law, and because Sir James Stephen had observed that the modern law of evidence grew up at a time when it was unlikely that a Roman Catholic privilege would be explicitly recognised,72 I explained how evidential privileges generally had evolved. That review suggested the insight that the denial of religious confession privilege in the early evidence law texts may well have been a casualty of the need to set out the relevant material in categories, including a category that naturally saw religious confession privilege grouped with other evidential privileges.73 The only problem that flowed from that grouping was that the great bulk of material that had to be catalogued concerning legal professional privilege quickly overwhelmed the material that could be cited in connection with religious confession privilege. While these two privileges had more in common than the privilege against self-incrimination, the privilege or immunity that protected state secrets or spousal privilege,74 the risk that they would not be properly distinguished, was realised in many of the texts that treated them. In particular, the independent and antiquarian history of religious confession privilege was not just glossed over, it was ignored completely.75 It is also understandable, though inaccurate, to observe that the importance of legal professional privilege in evidence law texts prepared primarily as handbooks for barristers, meant that the errors where religious confession privilege was concerned did not need to be corrected because the small number of cases raising the issue did not necessarily expose the error, as would have been the case if the error concerned legal professional privilege. The habit of grouping legal professional privilege and religious confession privilege together in texts treating privilege more generally, also explains why so many cases that really concerned legal professional privilege are cited in connection with religious confession privilege76 – both by judges (who learned their law from the texts as students and later consulted the same texts in practice) and text writers. My separate treatment of the legal professional privilege cases and the ‘irregular confession’ cases that were cited in connection with religious confession privilege confirmed that neither set of cases really advances understanding of religious confession privilege. Certainly analogies to religious confession privilege may have influenced the early development of legal profession privilege,77 and Baron Alderson’s reverse analogy back from legal professional privilege to religious confession privilege in R v Griffin78 was used to justify the exclusion of confessional evidence in that case. But after I had 72 73 74 75 76 77 78

Stephen, JF, A Digest of the Law of Evidence, London, MacMillan and Co, 1876, p. 172. Supra, chapter four, pp. 94–97. Supra, chapter four, p. 95. Supra, chapter four, pp. 95–97. Supra, chapter four, pp. 94–106. Supra, chapter four, p. 97. R v Griffin (1853) 6 Cox Cr Cas 219.

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considered all the cases, I found that the Wright and Graham summary that the law relating to religious confession privilege has not been developed in English law79 was proven. For while some of the cases showed judges working hard to avoid confronting religious confession privilege when it did present itself,80 there was no elaboration of the relevant law, as might have been expected in the wake of that discussion in Garnet’s case. Perhaps Hill J’s decision that the evidence Father Kelly was asked to provide in R v Hay did not involve the disclosure of confessional material in breach of the Catholic seal is an exception. But it is not convincing in light of both Father Kelly’s belief that such disclosure constituted a breach of his priestly obligation and his expectation that such breach would see him subjected to severe ecclesiastical discipline, such that disclosure must have seemed to him like a form of self-incrimination. My review of the extra-judicial comments in the House of Lords occasioned by the publicity surrounding the case of R v Constance Kent did not contribute additional enlightenment either, since none of the Lords who contributed to the discussion were well informed and there was informed comment outside the House that took the contrary view.81 Confidential Religious Communications Privilege Though religious confession privilege may not have been developed in English common law, the discussion in chapter five confirms that ample material exists not only to advance such development but also to expand it to favour confidential religious communications more generally and not just the narrower class of religious confessions. Before the twentieth century, that material includes the comments of Lord Kenyon CJ in Du Barré v Livette82 disapproving Buller J’s reputed decision in R v Sparkes;83 Best CJ’s obiter statements suggesting the existence of judicial discretion to exclude evidence of religious confessions if the priest did not want to reveal them in Broad v Pitt;84 Baron Alderson’s clear exercise of judicial discretion in excluding the religious confession evidence discussed in R v Griffin;85 and even some of the statements made by Jeune P in Normanshaw v Normanshaw,86 despite the fact that those

79

Wright and Graham, op cit, § 5612, p. 41. For example both R v Hay (1860) 2 F & F 4, 7; 175 ER 933 and In re Keller (1887) L.R. Ir. 158 are cases marked by judicial reluctance to tackle the religious confession privilege issue head on. See discussion in chapter four, pp. 109–113. 81 Supra, chapter four, pp. 116–120. 82 Du Barré v Livette (1791) 1 Peake 108; 170 ER 86. 83 Unreported but referred to in Du Barré v Livette (1791) 1 Peake 108; 170 ER 86. 84 Broad v Pitt (1828) 3 Carr & p. 518; 172 ER 528. See discussion supra, chapter four, pp. 102–103. 85 R v Griffin (1853) 6 Cox Cr Cas 219. 86 Normanshaw v Normanshaw (1893) 69 LTR 468. 80

Conclusion 367 last statements have been frequently cited as authority denying the existence of religious confession privilege.87 Though there are denials in the twentieth century that judges have any discretion to exclude evidence that is relevant and necessary for the attainment of justice in a case,88 these statements are tempered even in England: by judicial interpretation of what is necessary to the attainment of justice in a case;89 by statutory discretions;90 by observations that judges can exercise considerable moral authority upon the course of a trial by disapproving a line of questioning by counsel;91 and if the judge considers that the public interest in the preservation of a particular confidence outweighs the public interest in court, access to all the evidence.92 However, the twentieth century development most likely to lead to recognition of a broad common law confidential religious communications privilege in England, was Lord Hailsham’s observation that “[t]he categories of public interest immunity are not closed”.93 That idea not only resonated with his brother Lord Simon in D v NSPCC,94 but with Beverley McLachlin a year earlier in Canada,95 who noticed an almost identical sentiment expressed by Turner J in Bell v University of Auckland 96 eight years earlier in New Zealand. In the New Zealand case, what is more significant in the religious communications privilege context, is that Turner J adapted the same famous phrase from Lord Macmillan in connection with the law of negligence97 and applied it in relation to “the categories of privilege”.98 That Lord Hailsham and Turner J should use the same phrase to confirm that the law in relation to both public interest immunity and privilege is not stationary, has proven prophetic. 87

See chapter five, note 27. For example, see Lord Denning in Attorney-General v Mulholland and Foster [1963] 2 QB 477, 489–490, and Lord Edmund-Davies in D v NSPCC [1978] AC 171, 245. For an Australian example, see Owen Dixon J in McGuinness v Attorney-General (Vic) (1940) 63 CLR 73, 102–103. Lamer CJ made similar comments in R v Gruenke [1991] 3 SCR 263, 288. 89 For example, Lord Denning said “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, a necessary question in the course of justice to be put and answered” (Attorney-General v Mulholland and Foster [1963] 2 QB 477, 489–490). 90 Bursell cites such discretion in England in section 82(3) of the Police and Criminal Evidence Act, 1984 (Bursell, Judge RDH, “The Seal of the Confessional”, Ecclesiastical Law Journal 1(7) (1990), 84,109). See also discussion supra, chapter three, pp. 80–83 and chapter five, pp. 152–154. 91 Per Lord Simon in D v NSPCC [1978] AC 171, 239. See also discussion supra, chapter five, pp. 135–136. 92 Per Lord Edmund-Davies in D v NSPCC [1978] AC 171, 245–246. See also discussion supra, chapter five, pp. 137–139. 93 D v NSPCC [1978] AC 171, 230. 94 D v NSPCC [1978] AC 171, 236, 241. 95 McLachlin, B, “Confidential Communications and the Law of Privilege” (1977) 2 UBCL Rev 266, 269. 96 Bell v University of Auckland [1969] NZLR 1029. 97 Donoghue v Stevenson [1932] AC 562, 619; [1932] All ER Rep 1, 30. 98 Bell v University of Auckland [1969] NZLR 1029, 1036. 88

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Conclusion

For though the two “groups of rules”99 have discrete origins, the significance of the historical differences between them has been reduced because the same public interest arguments are now used to justify both. In Canada, the Supreme Court used the public interest in freedom of religion under the 1982 Charter of Rights and Freedoms to require case-by-case consideration of claims that confidential religious communications should not be admitted as evidence.100 Though the Supreme Court did not recognise confidential religious communications as a new class of privilege as Wigmore had suggested101 would be the result of the application of his four canons, the Supreme Court did direct that Canadian judges could use Wigmore’s criteria to weigh the competing public interests that argued for and against the admission of such otherwise relevant evidence. That result is not very different from the “balancing operation” that Lord Edmund-Davies described in connection with new categories of public interest immunity in D v NSPCC.102 In Ireland too, it was public interest inspired by the Wigmore principles that lay at the heart of Gavan Duffy J’s decision that confidential communications with a member of the clergy were privileged. As later in Canada, that decision flowed from the fact that a constitutional instrument entrenched the public interest in protecting the kind of religious freedom that was essential in Ireland.103 Religious Confession Privilege in Australia While there has not been a clear case in Australia which has invited elaboration of these same principles in relation to confidential religious communications, the historical difference between public interest immunity and privilege has been narrowed in Australia nonetheless. For in developing the dominant purpose test in relation to legal professional privilege since the sole purpose test was set out in Grant v Downs104 in 1976, the High Court of Australia has used arguments that have justified public interest immunities in the past.105 99 Stone J, Evidence, Its History and Policies, Revised by WAN Wells, Sydney, Butterworths, 1991 p. 69. 100 R v Gruenke (1991) 3 SCR 263. 101 Wigmore stated that his “four fundamental conditions [were] recognized as necessary to the establishment of a privilege against disclosure of communications” and that “a privilege should be recognized” “[o]nly if there four conditions are present” (op cit, Vol 8, p. 527). 102 D v NSPCC [1978] AC 171, 245. 103 Cook v Carroll [1945] Ir. Rep. 515. 104 Grant v Downs (1976) 135 CLR 674. 105 For example, before they made their famous statement that legal professional privilege was a common law right so firmly entrenched in the law that it was not to be exorcised by judicial decision, Stephen, Mason and Murphy JJ also said that “[t]he existence of [legal professional] privilege reflects, to the extent to which it is accorded, the paramountcy of this public interest over a more general public interest, that which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available” (Grant v Downs (1976) 135 CLR 674, 685). Though Jacob J’s judgement in the same trial

Conclusion 369 However, it is not just the analogical use of argument that has drawn the two groups of rules closer together in Australia. In Daniels v ACCC,106 six of the judges used language that confirmed that legal professional privilege was not just a rule of evidence,107 nor even simply a rule of substantive law.108 It was an important109 and fundamental common law immunity110 which embodies a substantive legal and human right111 that “is not limited to judicial or quasijudicial proceedings”.112 This conflation of the nature of privileges and immunities in Australia, is also obvious in the High Court’s decision in Baker v Campbell. For while Stephen, Mason and Murphy JJ had said in Grant v Downs that legal professional privilege was a common law right so firmly entrenched that it was “not to be exorcised by judicial decision”,113 seven years later in Baker v Campbell in1983, Dawson J also said that self-incrimination privilege was also “too fundamental a bulwark of liberty to be categorized simply as a rule of evidence”;114 that legal professional privilege “stems from a right which is no less fundamental”,115 and that the two rights were conceptually connected.116 This language confirms not only that public interest will be the dominating factor in future judicial consideration of the scope of evidential privileges in Australia, but suggests that international human rights norms will also be an integral part of future High Court decisionmaking where evidential privileges are concerned. In chapter seven, I identified the most obvious High Court of Australia decisions where international human rights norms have influenced Australian jurisprudence in the last fifteen years.117 While the decisions in Mabo118, Australian Capital Television119 and Teoh120 do not bear directly upon issues of privilege or immunity, various references in the judgements in Daniels do.

wished to keep “Crown privilege” (not immunity) separate from legal professional privilege, in his reasoning he nonetheless noted that the same public interest factors as militated in favour of disclosure of legally privileged material in Grant v Downs, also militated in favour of disclosure of Crown privileged material when a public inquiry was required by the public interest (Ibid, p. 691). 106 Daniels Corporation v ACCC (2002) 192 ALR 561. 107 Ibid, p. 564 (para 10 per Gleeson CJ, Gaudron, Gummow and Hayne JJ) and p. 583 (para 85 per Kirby J). 108 Ibid, pp. 564–565, para 11, per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 109 Idem. 110 Ibid, pp. 573–574, para 44, per McHugh J; p. 583, para 85, per Kirby J. 111 Ibid, pp. 583–584, para 86, per Kirby J. 112 Ibid, p. 583, para 85, per Kirby J. 113 Grant v Downs (1976) 135 CLR 674, 685. 114 Baker v Campbell (1983) 153 CLR 52, 128. 115 Idem. 116 Idem. 117 Supra, chapter seven, pp. 195–198. 118 Mabo v Queensland (No 2) (1992) 175 CLR 1. 119 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106. 120 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.

370

Conclusion

In particular, McHugh and Kirby JJ’s characterisation of legal professional privilege as not only a common law right but a “fundamental human right”121 demonstrates this point. In Australia, the human rights argument in favour of religious confession privilege is domestically unavoidable, since free exercise of religion is the only international human rights norm expressly entrenched in the Australian Constitution.122 If the High Court could be convinced that international human rights norms were also a valid consideration in a common law confidential religious communications privilege case, the applicable norms ought to be more compelling than in a legal professional privilege case, since the norms protecting freedom of religious practice are more direct than they are for legal professional privilege. For the best argument using international human rights norms in favour of legal professional privilege relies upon the fact that legal professional privilege is seen as an integral part of the right to a fair trial, and is seldom mentioned in international human rights instruments as a protected norm in its own right. On the other hand, both religious confession and confidential religious communication directly present themselves as fundamental examples of free exercise of religion when any international human rights instrument is read. Despite the strength of this argument, I have conceded that arguments that rely upon international human rights instruments will not gain much traction in courts below the High Court in the Australian judicial hierarchy since, for example, Spigelman CJ has doubted that even the New South Wales Court of Appeal as “an intermediate court of appeal”123 is at liberty to improvise with new categories of privilege.124 If the human rights argument is to have any convincing power at all in intermediate and lower courts in Australia, it will necessarily draw upon the limited jurisprudence that surrounds section 116 of the Constitution, including the finding that a law that was expressly directed at proscribing an otherwise lawful religious practice, would breach this constitutional provision.125 However, the High Court of Australia has affirmed that what Mason P (as he then was) called “the gravitational pull of statutes” in Akins v Abigroup Ltd 126 will influence the development of the common law with respect to evidential privileges in Australia. That is because Australia has “one common

121 Daniels Corporation v ACCC [2002] 192 ALR 561, 573–574 (para 44, per McHugh J) and 583–584 (paras 85 and 86, per Kirby J). 122 Section 116. 123 R v Young (1999) 46 NSWLR 681, 698, para 84. 124 Ibid, p. 700, para 91. 125 Per Pincus J in Lebanese Moslem Association v Minister for Immigration and Ethnic Affairs (1986) 11 FCR 543, 577–578, though note that his decision was overturned by the Full Federal Court on appeal who considered that the Minister had not intended to prohibit the free exercise of the practice of Islam when he had deported an Imam. See discussion supra in chapter six, pp 246–248. 126 Akins v Abigroup Ltd (1998) 43 NSWLR 539.

Conclusion 371 law … declared by th[e High Court of Australia] as the final court of appeal”.127 For though there was an insufficiently uniform pattern in legislation with respect to the availability of legal professional privilege in pre-trial circumstances for the High Court to declare “one common law” on the fine privilege point at issue in Esso,128 the “uniform pattern of legislation in five states”129 had provided the Court with assistance in making the common law seamless where marital rape was concerned.130 The High Court also noted with approval the United States Supreme Court decision131 that an 1886 “federal rule”132 that did not allow the application of wrongful death statutes in maritime cases “should adapt by analogy to the position established in the various states”,133 since the federal position was no longer “acceptable in …1970 [when] every State of the Union [had passed] a wrongful-death statute”.134 Though there was “no consistent pattern of legislative policy”135 with respect to the pre-trial application of legal professional privilege “to which the common law [could adapt] itself ”136 in Esso, the High Court said the “fragmentation of the common law”137 which only enabled common law adaptation in jurisdictions where the Uniform Evidence Act applied, was “inconsistent with what was said in Lange and unacceptable”.138 Since there are seven out of ten jurisdictions in Australia139 that now have religious confession privilege statutes, and since five of those jurisdictions have adopted the Uniform Evidence Act formulation of the privilege,140 it seems reasonable to suggest that the High Court would “adapt” the common law in Queensland, South Australia and Western Australia to that Uniform Evidence Act template standard if an appropriate case were presented for decision in the interests of Lange ‘seamlessness’.141 That likelihood is the stronger when the High Court’s willingness to invoke human rights norms from international law is factored into such consideration.

127

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 563. Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49. 129 Ibid, p. 63, para 25 quoting R v L (1991) 174 CLR 379, 390. 130 Idem. 131 Moragne v States Marine Lines Inc (1970) 398 US 375. 132 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49, 63, para 26. 133 Idem. 134 Idem. 135 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49, 61, para 23. 136 Idem 137 Idem. 138 Idem. 139 See chapter seven, note 221. 140 See chapter seven, note 223. 141 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49, 61, para 23 per Gleeson CJ and Gaudron and Gummow JJ and at, p. 81, para 91 per Kirby J. 128

372

Conclusion Religious Confession Privilege in the United Kingdom

In chapter eight I lay all the English history aside and asked the contemporary question, how would a religious confession privilege or a confidential religious communications case be decided in the United Kingdom today. It is all very well to say that a correct understanding of the history provides material from which modern English judges could fashion a contemporary religious communications privilege, but would they use that material? The jurisprudential nature of the United Kingdom has gone through a considerable metamorphosis since it became a member of the European Union, but much more particularly since it passed the Human Rights Act 1998 and made the human rights set out in the European Convention directly applicable in domestic law. How have the human rights sets out in the European Convention protected the manifestation of religion in the United Kingdom and will that protection by itself, put an end to evidence text denials that there is such a thing as religious confession privilege at common law? Because there has been no religious confession privilege case in the United Kingdom since the Human Rights Act was passed nor any considered by the European Court, the discussion is necessarily analogical and comparative. But the answer to the question is surprisingly hesitant. While one might have thought that the superimposition of a constitutional right to manifest one’s religion under the European Convention, on top of what was already a fairly robust religious pluralism in Britain, would have increased the likelihood that confidential religious communications would be privileged in the future, that answer is not certain. For instead of strengthening traditional religious freedom at home, it seems that European jurisprudence has rather provided English judges with discretionary tools that enable them to endorse and rubber stamp government policy. While the British courts have not stooped to any regular incantation of the European ‘margin of appreciation’ mantra, the religious freedom decisions that have been handed down since 1998 have a particularly un-British look about them. For homogeneity and conformance with social norms Europe-style seem increasingly to trump the autonomy that was accorded minority religion in the past so long as no credible threat to the peace and security of the nation was perceived. Religious Confession Privilege in the United States From the very genesis of its independent nation status, the free exercise of religion has been protected as a fundamental value in United States jurisprudence. And though the United States has not always lived up to its lofty pluralist aspirations but persecuted Catholicism and other minority religion particularly in the 19th century, yet religious confession privilege has been

Conclusion 373 well recognized and all the states have their own statutes to protect it. While in some cases, the enactment of those statutes can be philosophically connected with the reversal of a ‘bad’ judicial decision that went the other way, most of the religious confession privilege statutes were passed into law out of pure respect to fundamental but plural values. Wright and Graham have convincingly demonstrated that was especially true after the Second World War when improved human rights protection as a bulwark against totalitarian tyranny, was a value that resonated through all the states.142 And though there is no federal statute protecting confidential religious communications from compulsory disclosure in any courtroom, yet it is fair to say that the common law privilege articulated by Mayor Clinton in The People v Phillips143 in 1813 and reaffirmed by the Court of Appeals of the District of Columbia Circuit in Mullen v United States144 in 1958 is now essentially consistent with the statutory privilege as exists through all the States. Chapter nine concluded with a review of the impact of mandatory child abuse reporting statutes on the pre-existing religious confession privilege statutes. That review yielded surprising results for though some religious confession privilege statutes have been part abrogated, the practice of religious confession appears to continue unchanged. Whether that is because the churches have evolved protocols which ‘Miranda-warn’ would-be child abuse confessors, or because child abusers do not confess, or for some other more remote sociological reason, is unclear. But the absence of cases contesting claims of religious privilege or of churches protesting the loss of this timehonoured and sacred privilege, implies that confidential religious communications continue unabated where there is active participation in churches which endorse the practice of confession. Religious Confession Privilege in Canada and New Zealand Chapter ten began by observing that Canada did not follow the United States trend and create religious confession privilege statutes in the period after World War II as a reaffirmation of her commitment to human rights values including freedom of religion. And so, the religious confession privileges which had been created in Newfoundland in 1856145 and Quebec in …. were never templated elsewhere though they have been slightly modernized. But 142 Wright, CA, and Graham, KW, Federal Practice and Procedure: Evidence, 3rd ed, St Paul Minnesota, West Publishing Co, 1992, § 5612, pp. 47–49. 143 The People v Phillips (1813) NY Ct of General Sessions, reprinted at (1843) 1 Western LJ 109. See also “Privileged Communications to Clergymen”, The Catholic Lawyer 1 (1955) 198. 144 Mullen v United States 263 F. 2d. 275 (D.C. Cir. 1959). 145 An Act to Amend the Law of Evidence passed 12th May 1856 (19th Victoria, Cap. 15, section 6)

374

Conclusion

Canada’s affirmation of its commitment to multicultural rights and freedoms in the Charter of Rights and Freedoms in 1982, signaled the likelihood that some recognition of privilege for confidential religious communications was likely since religious confession was such a well-established practice among the majoritarian christian churches of Canada. And so it was that the Supreme Court of Canada fashioned a discretionary religious confession privilege from Canada’s commitment to free exercise of religion and the application of Wigmore’s canons of interpretation in cases where it was asserted that confidential material should not be produced in court.146 That need to find materials other than in the common law, was in part attributable to the inability of the defence in R v Gruenke to prove the existence of a religious confession privilege from the available historical materials. Yet the Gruenke court was not completely faithful to Wigmore, for Wigmore had recommended that the application of his canons should result in each case in the establishment of a new and separate category of privilege.147 The minority agreed that a new class of privilege was desirable since case-by-case adjudication would likely be subject to undue influence from the tides of public opinion.148 That likelihood would chill the spiritual relationship so essential to meaningful confessional practice.149 But the minority concern has not captured public or legislative concern for there have been no new religious confession privilege statutes passed in Canada to ‘correct the majority’ – suggesting that Canada is currently content to let its judges review confessional material on a voir dire however much that may be sacrilegious in the eyes of the religious community. New Zealand on the other hand has been committed to religious confession privilege since the nineteenth century having passed a statute very shortly after Sir George Jessel MR opined in Wheeler v LeMarchant150 that there was no such privilege at common law. And that privilege which originally followed the 1828 New York State template fairly closely has been developed and refined so that it is now one of the most generous expressions in the common law world. Technically the statutory recasting of the privilege in 2006151 as an unambiguously ecumenical privilege was not necessary since the Court of Appeal in R v Howse152 in 1983 had already confirmed that the privilege was not restricted to Christian churches with a canonical ritual. However, the broadening of the privilege in the 2006 Act to include not only religious confessions but also all confidential religious communications, put access to such

146

R v Gruenke [1991] 3 SCR 263. Wigmore, JH, Evidence in trials at common law, Revised by John T McNaughton, Boston, Little Brown, 1961, Vol 8, p. 878. 148 R v Gruenke [1991] 3 SCR 263, 311. 149 Idem. 150 Wheeler v LeMarchant (1881) 17 Ch D 675. 151 Evidence Act 2006, s. 58. 152 R v Howse [1983] NZLR 246. 147

Conclusion 375 evidence beyond the interpretive reach of any judge inclined to make a distinction in the interests of access to all the relevant evidence. Religious Confession Privilege in South Africa Chapter eleven discussed the law of religious confession privilege in South Africa. It was noticed that what can only be called a glimpse of recognition of a religious confession privilege at common law occurred in 1923,153 the decision of the Appellate Division of the Supreme Court in Smit v Van Niekerk154 at the height of the apartheid era in 1976, snuffed out that possibility. And while the Smit v Van Niekerk decision remains as the last authoritative jurisprudential word on the subject of religious confession privilege, it seems very clear that it was a high water mark - and in the wake of the new South African Constitution passed in 1996,155 that it can no longer be trusted as ‘the last word’ on whether religious confidences are privileged at law. For in the new Constitution, rights of communication privacy and freedom of conscience, thought, belief and opinion are entrenched as fundamental value in successive sections.156 And nor are these statements to be treated as mere aspiration values. The Constitutional Court has affirmed that the values stated in the new Constitution are intended to be and are utterly transformative of the law in South Africa.157 In that context, and with the additional and specific implication of the Constitutional Court in S v Bierman,158 it seems very likely that a generous and ecumenical religious communications privilege will be acknowledged by South African courts, probably along similar lines to that set out by the Supreme Court of Canada in R v Gruenke. Policy Chapter twelve is a chapter about policy. It asks the question, what if we came to the question of whether or not there should be a religious confession privilege with a clean sheet – what would we decide today? The chapter

153

Wissekerke v Wissekerke & Wissekerke (1923) P.H. F5. Smit v Van Niekerk, (1976) (4) SA 293 (A). 155 Constitution of the Republic of South Africa, 1996. 156 Ibid, sections 14 and 15. 157 Bato Star Fishing (Pty) Ltd v The Minister of Environmental Affairs and Tourism and others 2004 (4) SA 490 (CC) per O’Regan J at para 22 and per Ngcobo J at para 72. 158 S v Bierman 2002 (5) SA 243, 246 per O’Regan J (CC). She stated, 154

It should be plain however that in refusing this application, this Court has not considered the question whether the common law principle enunciated in Smit v Van Niekerk…is inconsistent with the spirit, purport or objects of the Bill of Rights. That is a matter that remains to be considered in the future in an appropriate manner.

376

Conclusion

canvasses the many different arguments that have been used to justify the privilege in the past from Bentham’s blunt utilitarian assertion that cost-benefit analysis together with any concept of tolerance simply required it,159 through to the modern secular argument that simple privacy requires it. There are also a few pages discussing the theological arguments which are used to justify such privilege including the canonical view that a priest is not compellable since he acts as an agent for God when he hears confessions.160 But ultimately, the writer finds that religious confession privilege will only be deemed justified to the extent that freedom of religion itself is found justified in a given society. That resonates with Wigmore’s insight that an evidentiary privilege will only be justifiable to the extent that society wants to sedulously foster the underlying value that privilege is designed to protect.161 Ultimately, in a secular society, religious freedom is only likely to be valued if it is well understood that religious freedom prevents civil strife. Extinction Theories Since the text writers are so consistent in their denials of the existence of religious confession privilege at common law, in chapter six I summarised the theories that have been advanced to explain that extinction, since those denials have not been adequately explained anywhere. Those theories were first, that religious confession privilege was extinguished at or by the English Reformation or by the Restoration of the monarchy after the Cromwellian Interregnum. Secondly, that as a Roman Catholic privilege, religious confession privilege was extinguished by the institutional prejudice against that religion that lasted from the English Reformation through to the nineteenth century. Thirdly, that any perceived need to pass a religious confession privilege statute demonstrated that the privilege did not exist at common law. Fourthly, that religious confession privilege does not exist in British Commonwealth jurisdictions that have not adopted or retained any established church. And finally that Sir George Jessel MR’s dicta in Anderson v Bank of British Columbia162 and Wheeler v LeMarchant163 so captured the spirit of the common law against any privilege except a narrow legal professional privilege in the late nineteenth century, that his dicta extinguished any residue

159 Bentham, J, Rationale of Judicial Evidence, New York and London, Garland Publishing, Inc, 1978 (Reprint of the 1827 ed published by Hunt and Clarke, London), Vol. IV, pp 586–592. 160 Chapter Twelve supra, pp. 350–354. 161 Wigmore, JH, Evidence in Trials at Common Law, Revised by John T McNaughton, Boston, Little Brown, 1961, Vol. 8, p. 527. 162 Anderson v Bank of British Columbia (1876) 2 Ch D 644. 163 Wheeler v LeMarchant (1881) 17 Ch D 675.

Conclusion 377 of religious confession privilege that may have arguably endured till he made his statements. Each of those theories was analysed and dismissed as follows. There is no explanation why the English Reformation or the Restoration of the monarchy could have extinguished religious confession privilege.164 It is not reasonable to believe that simple religious prejudice could permanently extinguish a privilege that was recognised in antiquity absent an abrogating statute, particularly when every legislature that has addressed the issue since has passed an affirming statute to put the matter beyond doubt.165 Statutes have a variety of moving causes. While some religious confession privilege statutes may have been passed because the legislators incorrectly believed no religious confession privilege existed at common law, their mistaken belief does not retrospectively validate the incorrect interpretation of history which motivated them to legislate, nor does it invalidate the resulting statute.166 In Australia, the existence of a constitutional guarantee of free exercise of religion makes irrelevant the suggestion that the absence of a state church somehow removed common law religious confession privilege. That the same constitutional provision which entrenches free exercise of religion in Australia also proscribes Commonwealth creation of a state church,167 also demonstrates the misconception in this theory for extinction of religious confession privilege at common law. For from the beginning of the Australian Commonwealth, it was intended that there be no state church but that there should be free exercise of religion.168 And finally, while it is axiomatic that the common law is the capture or expression of custom,169 both develop. Even if Sir George Jessel MR did express the feelings of many judges in his age about religious confession privilege,170 those feelings were the consequence of misinformation. In any event, his feelings have been superseded by society’s interest in fostering free exercise of religion in the twentieth century. Sir George Jessel MR did not cite any binding or convincing authority for his view of religious confession privilege, and though his dicta have often been cited, they have not been expressly followed in any precedential decision that has denied religious confession privilege since, because there have not been any such cases.171

164

See discussion supra, chapter six, pp. 155–160. See discussion supra, chapter six, pp. 160–164. 166 See discussion supra, chapter six, pp. 164–167. 167 The full text of section 116 of the Australia Constitution states: “The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth”. 168 See discussion supra, chapter six, pp. 167–173. 169 See quotes from Oliver Wendell Holmes Jr. supra, chapter six, p. 174. 170 See the discussion about the extra judicial comment elicited by public discussion of the case of R v Constance Kent supra in chapter four, pp. 116–120. 171 See discussion supra, chapter six, pp. 174–179. See also chapter one, pp. 21–28. 165

378

Conclusion Final Conclusion

This book therefore ends with the finding that there was religious confession privilege at common law before the English Reformation. That privilege has endured and it has not been abrogated by statute or extinguished by common law development since. Indeed, it has been reaffirmed legislatively in many jurisdictions that have felt the need to consider it – often because misinformed judges have denied it. While the writer can wish with J Noel Lyon that the “legal writers should stop stating categorically that no [religious confession] privilege exists at all”,172 the writer’s more modest hope is that this material will enable advocates to convince judges in the twenty-first century that proper analysis of the relevant common law sustains a different conclusion. It is also to be hoped that the recognition that religious confession privilege existed at common law will enable the more generous interpretation of existing statutes suggested in chapter seven.173 In essence, that argument holds that judges do not need to interpret religious confession privilege narrowly because the public interest requires the court to see all the evidence, because there is a countervailing public interest in fostering confidential relationships between priest and penitent. That countervailing public interest is implicit in the need perceived by the legislature to pass a religious confession privilege in the first place. If this analysis is accepted, the gravitational pull of existing Australian religious confession privilege statutes should also see state judges in Queensland, South Australia and Western Australia acknowledge religious confession privilege at common law, even if the Commonwealth Uniform Evidence Act is never adopted in those states.

172 173

“Privileged Communications – Penitent and Priest” [1964–65] 7 Crim LQ 327, 328. Supra, chapter seven, pp. 210–212.

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INDEX A’Becket, Archbishop Thomas 34, 35, 41, 45, 48, 70, 74, 77, 363 Abelard, Peter 65 Abjuration 41, 43, 48, 51 Abuse, child See child abuse Abuse, clerical 42, 276 Adam and Eve, symbolically expelled from church 60 Ahdar, Rex 172–173 Ahdar, R and Leigh, I 221, 245, 350–353 Alderson, Baron 91, 115–116, 121, 125–126, 135, 150, 175, 177, 193, 205–206, 317, 350, 358, 365–366 Alexanders II, Pope 68 Allred, Vincent C 1, 156, 159, 165, 172, 177, 210 Ambrose, St 60, 61 Anachronism, modern interpretations of legal history in danger of 34 Anglican canon law, 1603/4,113th canon prohibiting disclosure of confessions 77–81, 87, 157, 363 Anglican canon law, Reformation changed little 76–77 Anglican Prayer Book 158 Anselm, Archbishop of Canterbury 65 Apartheid abrogated religious confession privilege 305, 308–309, 313–314, 374 Approvers (informers) 52–53 Attlay’s Famous Trials of the Nineteenth Century 4, 116 Augustine, Monk 67 Augustine, St 61 Australia, High Court 7, 8, 133, 135–136, 172, 181, 191–193, 197, 207–210, 213–214, 232, 368–371 Avanly, Lord 257 Ayres, Philip 119 Avranches, heights of 70 Baddeley, E 4, 30, 118, 120, 162, 176, 358 Baggally, Justice of Appeal 24, 25 Baker, JH 75, 176 Balancing public interests 134–135, 148, 202–204, 211, 228, 249–250, 252, 280, 291, 308, 336–338, 347, 368 Beheading See Decapitation Bellamy, JG 48, 50, 51, 55 Benefit of clergy See Clergy, benefit of Bentham, Jeremy 176, 199–201, 315, 318– 321, 324, 334, 341–342, 344–347, 355, 376

Berger, Peter L 326, 354–355 Berman, HJ 32, 45, 68, 69, 72, 73, 77 Best, Chief Justice WD, (1st Baron Wynford) 20, 101–103, 108, 124–125, 150, 152, 175, 193, 203–204, 266, 315, 317, 344, 359, 366 Best, WM 26, 27, 53, 89, 96, 107, 114, 149, 161, 193, 200, 358 Bingham. Lord 234, 241 Black, HC 37, 39, 55 Blackstone, Sir W 33, 46, 47, 81, 157–158 Blunt, JH 3, 79, 363 Bracton 33, 34, 35 Brand, Paul 31 Brennan, Frank 329–330, 334, 354 Brocker, LL 166 Brougham, Lord, advocated traditional rationale for legal professional privilege, necessary for justice 201, 344 Bruce, Steve 326 Brut, The, Chronicles of England 49 Buller, Justice 15, 16, 20, 28, 101–102, 104– 105, 107, 125, 162, 193, 258, 304, 358, 366 Burger, Chief Justice 316, 322 Bursell, Judge RDH 3, 4, 30, 78, 80–84, 116, 125, 127, 153, 363–364, 367 Butler, AS 84 Buzzard, JH, May R, and Howard, MN 1, 26, 27, 109 Cairns, Lord Chancellor 120 Callahan, Michael 1, 156 Cameron, Justice 310–311 Campbell. Lord Chief Justice 120 Campbell, Sister Simone 156, 166, 262, 270 Canada, Supreme Court 7, 142–148, 150– 151, 167, 169–171, 187, 195, 214, 239, 297, 308, 312, 314, 331, 368, 374 Canterbury, Archbishop of 63, 64, 65, 68, 69, 73, 74, 77, 363 Canute, King 67, 70 Carswell, D 51, 56–57 Carter, Stephen 352 Case by case discretionary religious communications privilege 145–148, 153, 154, 188–189, 214, 239, 249, 252, 283, 289– 290, 298, 311, 338, 374 Cassidy, RM 84 Categories in evidence texts, errors resulting 94–97, 365 Categories of privilege not closed 141, 184, 187, 190, 289, 367

390

Index

Catesby, Robert 56, 106, 228 Catholic code of canon law 224 Catholic persecution, religious confession privilege extinguished by 6, 30, 107, 114, 119, 121, 151, 155, 159–164, 179, 228, 252, 258–259, 376–377 Celtic custom, source of seal of confession 61–63 Charles II, King 158 Chelmsford, Lord Chancellor 117 Child Abuse 10, 228–229, 235, 238, 249, 263–264, 281 Child Abuse, does mandatory reporting abrogate religious confession privilege 253, 277–282, 373 Child, interests of 241 Chilling effect of judicial discretion on spiritual relationship 148, 239, 249–250, 287, 291, 331, 338, 374 Christian religion is part of the law of the land 170, 173 Church and State, undivided before the Reformation 31–36, 362 Civil Code of Lower Canada 285 Clarendon, Constitutions of 70, 74 Clement II, Pope 68 Clergy, benefit of 30, 34, 44–48, 68, 87 Clergy, member of, who defines 294–295 Clinton, Mayor DW 115, 162–164, 172, 193–194, 254, 256–262, 304–305, 331–332, 373 Cockburn, Chief Justice 126, 175 Coke, Sir Edward 3, 5, 15, 29, 30, 39, 40, 42, 43, 44, 48–59, 85, 87, 89, 99, 106, 113, 116, 124, 154, 157, 159, 166, 228, 225, 236, 362, 364 Cole, WA 269, 278–281, 323–324, 328–329 Coleridge, EF 82, 113, 119, 135, 174–176 Coleridge, Lord Chief Justice 82, 113, 119– 120, 135, 174–176 Commissioners, at Garnet’s trial 57, 159, 362 Common law rights not abrogated without clear statutory words 191 Common law, evolution and definition of 36–39, 362 Compelling interest test, application to religious freedom privilege 269, 279–280 Compelling religious confidences may bring judicial system into disrepute 148 Compelling religious confidences counterproductive 201, 347–348 Compulsion of religious confidences is unjust 201, 348 Concordat at Bec, 1107 69, 70, 74 Concordat at Worms, 1122 69 Confessional informality, a bar to privilege 106–114, 291 Confession, who defines under statute 271–275, 294, 296–297

Confidential confession, evolved to avoid embarrassment of public confession 63 Confidentiality as justification for privilege 130–132, 188, 336–337 Confidentiality, sacred 205–206 Conflict, avoiding between Church and State 111 Constantine 60 Contract, ecclesiastical jurisdiction justified by promise and oath 33 Cooke, Sir Robin, Lord of Thorndon 194, 212, 284, 295–300, 316–317, 322 Cottenham, Lord 23, 24, 25, 100, 359–360 Coutume de Paris 284–285 Cranmner, Thomas, Archbishop of Canterbury 74, 77 Criminal Law Revision Committee, England 137 Cross, Sir Rupert 137, 140, 213 Cross, R and Tapper, C 27, 28 Currie, I and de Waal, J 310 Decapitation (beheading) 41, 43, 51, 55 Degradation 35, 163, 254, 256 Denning Lord Justice AT, MR 129–132, 134, 137–138, 140, 149, 193, 217–218, 306–307, 336–338, 367 De Tocqueville, A 352 Dickson, Chief Justice 169, 327 Diplock, Lord Justice 133–135, 137–139, 190, 336 Discretion to exclude confidences 130–148, 152–154, 339, 366 Discretion to exclude evidence to avoid civil penalty or mere embarrassment 256–258 Dixon, Sir Owen, Chief Justice of Australia 6, 119, 181, 183, 187–188, 308, 315, 337–338, 345, 367 Doe, N 3, 30, 78–79, 82–83, 128, 363 Donaghue, S 196 Double jeopardy, criminal punishment could not follow degradation 35 Duress, admitting religious confessions analogous to 177, 319–320, 348–349 Duress, spiritual 19–20, 108, 317 Dyzenhaus, David 305 Ecclesiastical jurisdiction 31–36, 362 Edmund-Davies, Lord 132, 136–140, 193, 308, 336, 367–368 Edward II, King 42, 51, 53, 70, 363 Edward III, King 51 Edward the Elder 67, 70 Elizabeth I, Queen 77, 92, 364 Ellenborough, Lord 257 Elliott, DW 30, 82, 124, 153 English nationalism, a factor in English Reformation 76 Ethelred, King 67, 70

Index European Court of Human Rights 238, 240–248, 250, 330, 372 Evans, Carolyn 84, 227–228, 235, 243–247, 302 Evatt, Elizabeth 196–197 Evidence texts, originated as handbooks for barristers 93–94 Excommunication, consequences of 33, 225, 254 Exomologesis (public confession) 60 Fair trial, a fundamental human right 206 Finlason, LF 4, 30, 112, 120, 124, 128, 162 First religious freedom statute 115, 172, 177, 253, 261–266, 269, 287 Fisher, Simon 350 Foreign treaty ratification, dualist tradition 219 Forum externum 227 Forum internum 227–228, 247, 302 Freedom of religion, a non-derogable right 329–330 Freedom of religion, limitations on 227–229, 235, 237–238, 241, 243–245, 248–249, 252, 310, 330–332 Freedom of religion, manifestations of 225–227, 235–249, 252, 281 Freedom of religion not infringed by allowing religious confessional evidence 146 Freedman, W 310–312 Free exercise of religion, a fundamental human right 206, 223–224, 370 Free exercise of religion, religious confession privilege a part of 259–260, 265, 269 Free exercise of religion, some practices not protected 260, 332 Futility of trying to compel disclosure of confessional confidences 340–341 Gabel, LC 44, 45, 47 Garvey, John 353 Gavan Duffy, Justice 131, 149–152, 159, 164, 252, 368 Gladstone, WE, Prime Minister of England 82, 119, 175 Gravitational pull of related statutes 184, 188, 207–210, 212, 214, 266, 281, 283, 370, 378 Greenwell (or Greenway) 56–58, 106 Gregorian reforms See Investiture struggle Gregory VII, Pope (Hildebrand) 45, 68, 69, 70 Gregory the Great, St and Pope 67 Gresley, RN 17, 105 Gunpowder plotters 56 Hageman, JF 17, 18, 111, 113, 225, 350 Hailsham, Lord of St. Marylebone 133–137, 140–141, 149, 188, 336, 367

391

Hanging 41 Harrington, Joanna 218–220, 222, 229–232, 245 Hawke, A 16, 105 Head scarves 240–244 Helmholz, RH 3, 31, 32, 34, 35, 66, 71, 78, 86, 92 Henry I, King 69 Henry II, King 48, 70 Henry IV, Emperor 70 Henry V, King 43, 44, 50 Henry IV, King 50 Henry VII, King 46 Henry VIII, King 30, 34, 35, 36, 39, 42, 45, 46, 58, 66, 72–80, 85, 302, 361, 363–364 Heydon, JD 1, 27, 28, 127 Hildebrand Reforms See Investiture struggle High Court of Australia See Australia, High Court Hill, Justice 4, 112–113, 124, 174, 366 Hoffman, LH 213 Hogan, EW Jr 4, 50, 156–157, 165 Holdsworth, WS 32, 34, 35, 36, 41, 42, 43, 45, 46, 47, 48, 51, 54, 71, 73, 74, 75, 76, 79, 81, 85–86, 92, 166 Holmes, Oliver Wendell Jr 37, 38, 124, 174, 176, 263, 377 Holocaust inspired tolerance and religious freedom 267, 373 Hope, Lord 230 Horner, Chad 123, 166, 271 Hostettler, J 29, 56 House of Lords 6, 10, 116–118, 131–141, 147, 176, 198, 212, 218, 221, 229–234, 336, 366 Human rights instruments alone do not protect human rights 329 Human rights, use in religious freedom cases 8, 9 Hybrid rights claims, compelling interest test may still apply to 279–280 Immunity and privilege, analogies between 198–207 Imperative duty of disclosure in the witness box 183 Incompatability, declaration of 220–222, 233, 251 Informers (approvers) 52–53 Innocent IV, Pope 34, 70, 71, 363 International Covenant on Civil and Political Rights (ICCPR) 329–330 Investiture struggle 45, 68, 69–70 Irregular confessions 106–114, 365 James I, King 42, 43, 54, 58, 77 James, Lord Justice 24, 25, 360 Jeppe, Justice 303, 306–309, 313

392

Index

Jessel, Sir George MR 6, 14, 16, 22, 23, 24, 25, 27, 28, 100–101, 120, 126, 144, 150, 155, 172–179, 193, 217, 284, 292, 295, 315, 359–360, 374, 376–377 Jeune, Sir Francis H, President of Probate 127–128, 130, 150, 189, 193, 366–367 Judge can exercise considerable moral authority on course of a trial 153 Judges, priests cannot act as 34, 70–72 Judicial predisposition favours viewing all the evidence 183, 291, 307–308, 315, 337–338, 345–346 Judicial vandalism 234 Jury, transformation into a judicial body 91 Kenyon, Lord Chief Justice 15, 20, 28, 94, 96, 101, 104–105, 107, 124–125, 175, 193, 225, 258, 270, 304, 315, 358–359, 366 Kilbrandon, Lord Justice 133, 136, 149 Kirby, Justice 172, 194–196, 209, 369–371 Kittredge, GL 50 Knight Bruce, Vice Chancellor 211, 324–325, 328, 338 Kuhlmann, FL 165, 267–269, 277 Kurtscheid, B 52, 57, 58, 61, 63–66 L’Heureux-Dubé, Justice 145, 189, 239, 248– 249, 283, 287, 290, 298, 316–318, 322–324, 327–328, 331, 334–335, 338–340, 354 Lacey, Wendy 196–197 Lamer, Chief Justice of Canada 144–147, 164–167, 169, 179, 184, 189, 289, 298, 312, 327, 367 Lanfranc, Archbishop of Canterbury 64, 65, 68, 69 Langdale, Lord 99, 101 Lateran Council, Fourth 35, 53, 63, 64, 65, 66, 70, 78 Lateran Council, Fourth – 21st canon prohibiting disclosure of confessions 65, 80, 363 Latko, EF 60 Law Reform Commission, Australia 1, 128, 181, 213 Law Reform Commission, Criminal Law Revision Committee, England 137, 304 Law Reform Commission, Victoria 210 Law Reform Commission, West Australia 210 Learned Hand, Justice 264–265 Leeder, L 30, 79, 82, 225 Legal Professional Privilege, a bulwark against tyranny 202 Legal Professional Privilege, a fetter upon the search for truth 201 Legal Professional Privilege, a fundamental right 186, 191–192, 194, 198, 202, 346, 369–370 Legal Professional Privilege, confused with Religious Confession Privilege 90–106, 365

Legal Professional Privilege, dominant purpose test 187, 207–208 Legal Professional Privilege, doubt of rationale that it is necessary for proper functioning of legal system 201–202, 345–347 Legal Professional Privilege, doubt that it should apply absent prospect of litigation 202 Legal Professional Privilege not analogous to Religious Confession Privilege 177–178, 365 Legal Professional Privilege, originated as exception to witness compulsion 92 Legal Professional Privilege, relationship sacred 205–206 Legal Professional Privilege, sole purpose test 187, 207–208 Legitimacy of courts undermined by coercing disclosure of confessional secrets 342–347 Legitimate expectation of Australian compliance with international conventions 197 Leigh, Ian 218, 221–222, 244–245 Lemon test 329 Leo I, Pope 64 Livingstone, I 320–321, 339 Locke, John 351 Lyon, H and Block H 57 Lyon, J Noel 177–178, 204–205, 317, 320, 348–349, 378 Lyndwood 35 McHugh J, doubt that legal professional privilege is necessary for proper functioning of legal system 201–202, 345–347 McLachlin, B, Chief Justice of Canada 141, 188, 367 McManus, FR 224 MacNally, L 114–115 McNeill, JT 60–64 McNicol, SB 28, 35, 82, 83, 84, 94, 111, 124, 126, 128, 152, 172, 178, 181, 188–189, 199, 210, 225, 318, 322, 340–343, 354, 358, 364 McWilliams, PK 111, 193 Machiavelli 36 Maitland, FM 76, 86, 87 Margin of appreciation doctrine 8, 9, 218, 241, 250, 330, 372 Marius, R 72, 74, 75, 79 Marriage, no secular jurisdiction 32–33 Martens, Judge 240 Martyr, Peter 77 Marx, K 347 Mascardus 35, 225, 350 Mason, Sir Anthony, Chief Justice of Australia 196, 198, 202, 368, 370

Index Mason, Keith, President New South Wales Court of Appeal 170–171 Matthews, JB and Spear, JF 13, 17, 22, 35, 95, 225, 350 Mayes, Jane E 123, 166, 206, 262, 272 Mazza, MJ 166, 272 Medina, JH 156, 166 Mellish, Lord Justice 23, 24 Meninger, K 60 Millet, Lord 234 Milsom, SFC 3, 31, 34, 37, 38, 40, 55, 90 Mitchell, MH 84, 123, 166, 269, 279–281, 290–291, 323–324, 335, 338–339 Mockler, A 57 Mulcahy, Leigh-Ann 218 Murray, L 60, 62–63 Narrowly construed religious confession privilege unconstitutional 271–271, 274–275 Necessity test (Arrowsmith test) for determining whether manifestations of religion protected 238, 248, 252 Neutrality, influence on religious confession privilege 269–277 Nicholls, Lord 230–231, 233–234, 241 Nokes, GD 28, 30, 81, 83, 85, 87, 105, 113, 159, 174, 193, 213, 358, 363–364 Nolan, RS 3, 4, 30, 35, 49, 65, 66, 67, 70–71, 84, 85, 86, 116–117, 125, 161, 265 Norman conquest 66–68 Nussbaum, Martha 332–334, 349 O’Regan, Justice 313, 375 Odgers, WB 17, 22, 27 Oireachtas, sovereignty of 251 Oral evidence, evolution of use and rules concerning 91 Park, Justice 14, 16, 18, 20, 21, 28, 93, 103, 193, 359 Paschal II, Pope 69 Patrick, St 62 Peake, T 13, 14, 16, 17, 18, 20, 21, 28, 93–96, 156, 357–360 Pennycuick, Sir John 132 Perry, Michael 227, 329–330, 352 Phillipps, SM 13, 16, 17, 93–96, 105, 357 Phipson, SL 4, 17, 25, 26, 27, 113, 116–120, 125, 140, 213 Plucknett, TFT 31, 32, 35, 36, 42, 43, 66, 68, 69, 72, 176 Police informant privilege, analogy to 134 Pollen, JH 56, 57 Pollock Sir F, and Maitland, FM 32, 34, 35, 41, 44, 45, 46, 47, 48, 49, 70–71 Powell, E 17, 18 Powell, M 13, 17, 18

393

Prejudice, anti-Catholic See Catholic persecution, religious confession privilege extinguished by Privacy justification for religious confidences 148, 302, 309–310, 322, 334–340 Privacy rationale for religious confession privilege may be blasphemous 339 Privilege claims to be allowed in light of reason and experience 265, 270, 277–278 Privilege for related communications with a clerical superior 56–58, 106, 297 Privileges exist to protect individual liberty 199 Privilege/Immunity distinction declining significance 198–199 Proportionality, doctrine 9, 240–241, 249–250, 330 Proselytism 240 Public confession See Exomologesis Pudelski, CR 278–281 Rape shield law See Sexual Assault Communications Privilege Rawls, John 353 Reese, S 115, 165, 172, 262, 279, 317, 340–341 Religious confession privilege justified by society’s interest in freedom of religion 327–334 Reformation, religious confession privilege existed before 26, 150, 154, 179, 265, 364, 378 Reformation, religious confession privilege extinguished by 6, 106, 118–119, 155–160, 179, 266–267, 376–377 Reformation, philosophical questioning of religion 72 Reformation, separation of church and state 72–73 Religion, a bulwark against tyranny 352 Religion, importance in world geo-politics 326–327 Religious confession privilege, a fundamental human right 211, 215 Religious confession privilege class still possible but not necessary 145, 147, 290–291 Religious confession privilege, denial inconsistent with religious toleration 321 Religious confession privilege, disclosure prohibited by statute 286, 297 Religious confession privilege, ecumenical nature of 237, 249, 266, 278–279, 281, 284, 288, 294–295, 300, 374–375 Religious confession privilege, hybrid rights claims See Hybrid rights claims, compelling interest test may still apply to Religious confession privilege, justified by society’s in religious communications 142, 280, 323–327

394

Index

Religious confession privilege not essential to functioning of legal system 146, 185, 319 Religious confession privilege, revocation of statute unconstitutional 168 Reporting, legal 2 Restoration, religious confession privilege extinguished at 1, 155–160, 376–377 Rights Brought Home: The Human Rights Bill, White Paper 218, 220 Rishworth, Paul 221 Robilliard, St JA 126 Rodes, RE Jr 78, 82 Rodger, Lord 233–234 Roscoe, H 13, 16, 18, 93, 96–97 Royal supremacy, theory of 36, 73–77 Rumpff, Chief Justice 302, 305–306, 308, 313–314 Sanctuary 41, 42, 49 Scandal 64 Scalia, Justice 255, 260 Scarman, Lord Justice 132 Schwikkard, PJ, Van Der Merwe SE, Collier, DW, De Vos WL, St Q Skeen, A and Van Der Berg, E 306, 310 Seamless common law desirable 208–210, 370–371 Self-incrimination privilege, analogy to 254, 256–257 Self-incrimination privilege, confirmed by statute 254 Self-incrimination privilege, justification of 205 Self-incrimination privilege, originated as exception to witness compulsion 92 Self-incrimination privilege, a bulwark of liberty, more than a rule of evidence 186, 199–200, 369 Sexual Assault Communications Privilege 186–187, 190–191, 204, 229, 231 Simon, Lord of Glaisdale 133–138, 149, 153, 160, 204–205, 336, 367 Simpson, AWB 14, 38–39, 174 Sin, justification for ecclesiastical jurisdiction in criminal matters 32 Sippel, JA 271 Smirke, E 18 Smith, Henry E 317, 348–349 Smith, Michael Clay 1, 166, 262 Smith, Sir Michael, MR (Ireland) 114, 161, 193, 258 South Africa, Constitutional Court 302, 312–313, 375 Spigelman, Chief Justice of New South Wales 6, 104, 136, 140, 142, 182, 184, 187–191, 193, 196, 211, 213, 370 Spousal communications privilege 95, 272, 335, 365

Spread of religious confession privilege statutes 266–269 Starkie, T 13, 16, 20, 21, 28, 93–94, 96, 357, 359 State church extinguishes privilege 155, 167–173, 179–180, 376–377 State secrets privilege 203 Statutes, evolution of 39–42, 166, 362 Statutory interpretation 190, 207–208, 211–212, 215, 229–235, 281–282 Strasbourg 217, 219–220, 222, 228, 231, 235–245, 250–251 Stephen, Sir James F QC 1, 13, 27, 90, 92, 97–98, 159–161, 358, 365 Steyn, Chief Justice of South Africa 305 Steyn, Lord 222–223, 229 Stone, J (and Wells, WAN) 13, 55, 90–91, 93–94, 126, 178, 198–200, 203, 205, 357, 368 Stuart, Vice Chancellor 25 Stubbs, Bishop W 85–87 Supreme Court of Canada See Canada, Supreme Court of Taylor, Judge Pitt 13, 17, 18, 27, 96, 350 Taylor, Paul 235, 238, 243, 247 Tertullian 61 Theodore of Tarsus 63 Theological justification for religious confession privilege 350–354 Tiemann, WH and Bush, JC 4, 53, 116, 119–120, 125, 157–158, 324, 350 Tierney, B 73 Thayer, JB 13 Toledo, Council of 62 Toth, Valentine A 156 Treason, definition of 48 Treason, exception to religious confession privilege 44, 48–54 Treason, French authority for exception to religious confession privilege 52 Treason. misprision of 49, 55 Treby, Lord Justice 257 Trone, John 196 Turner, Alexander, President of the New Zealand Court of Appeal 141, 375 Turner, Sir GJ, Vice Chancellor 100–101, 193, 367 United States, Supreme Court of 9, 205, 227, 246, 264, 269, 271, 274, 279, 321, 332, 371 Universal Declaration of Human Rights, 1948 197, 214 Van der Vyver, JD 303–308 Van Dokkum, N 310 Vickers, KH 50

Index Waldron, Jeremy 352–353 Walsh, Walter J 255, 260, 262, 292 Warham, Archbishop of Canterbury 73 Westbury, Lord Chancellor 117–118 Westmeath, Lord 117 Whittaker, LK 166 Wigmore, John Henry 1, 4, 13, 29, 30, 31, 40, 58, 59, 92, 93, 97–98, 107, 111, 113, 126, 142, 144, 146–147, 151–152, 155–160, 176, 178, 187, 189, 200–201, 205, 213, 225, 266, 280, 288–291, 305, 307, 315–316, 318–322, 332–333, 335, 338, 342–344, 347–348, 352, 354, 360–361, 364, 368, 374, 376 Wigmore principles not carved in stone 146, 289 Wigmore favoured religious confession privilege as a distinct class 151–152, 374 Willes, Justice 117, 119–120, 176

395

William the Conqueror, King 64, 68, 69, 74, 363 William Rufus, King 69 Winckworth, P 4, 14, 97–98, 159, 350, 358–360 Witnesses, evolution of use in criminal trials 91 Wolf, Lord Chief Justice 230 Wolsey, Cardinal 72 Wright CA, and Graham, KW 4, 158–159, 161, 171, 206, 210, 262, 264, 267–272, 275, 320–322, 328, 339–344, 347, 354–355, 360–361, 366, 373 Xenonophon, Nick 213 Yellin, Jacob M 1, 4, 156, 166, 262 Young, Michael 326