This weekend, The Mail on Sunday carried the headline “Vicars set to reveal secrets of confession: Church of England may axe 400-year-old sacred law to let clergy report sex attackers”.  Although the story is prompted by recent decisions by the Anglican Church in Australia, this particular piece of information has been in the public domain since July this year when the Revd Simon Cawdell of Hereford tabled the following Private Member’s Motion (PMM):

PROVISO TO CANON 113 (July 2014)

“That this Synod call on the Business Committee to bring forward legislation amending the proviso to Canon 113 of the Code of 1603 so that a minister who, in the exercise of the ministry of absolution, receives a confession of a serious criminal offence (including in particular a sexual offence involving a child or vulnerable adult) is not required to keep the confession confidential,”

which at that time had attracted 4 signatures [1].

However, the issue had already been flagged up to Archbishop Welby in the final report of the Archbishop’s Chichester Visitation [2]: published on 3 May 2013, it was written by Bishop John Gladwin and Chancellor Rupert Bursell QC who were appointed in 2011 as the former Archbishop of Canterbury’s commissaries to carry out the enquiry into the operation of the diocesan child protection policies in the Diocese of Chichester.

The motion must therefore be viewed in the context of: the content of the proviso to Canon 113 of 1603 and the associated Canon 29; the implications of these measures in canon and criminal law; discussions within the Church since the publication of the Chichester Report; and the likelihood of the PMM being discussed at General Synod in November 2014.

Canon law

The present Code was promulged by the Convocations of Canterbury and York in 1964 and 1969, replacing the whole of the Code of 1603 with the exception of the proviso to Canon 113. Although a revised version of Canon 113 was drafted [3], Bursell notes in his article in the Ecclesiastical Law Journal [4]  that after consultation with the Attorney General, “it was thought best to leave the proviso to the old Canon 113 unrepealed”.

In relation to private confession, Canon B 29 Of the ministry of absolution states:

“2. If there be any who by these means cannot quiet his own conscience, but requires further comfort or counsel, let him come to some discreet and learned minister of God’s Word; that by the ministry of God’s holy Word he may receive the benefit of absolution, together with ghostly counsel and advice, to the quieting of his conscience and avoiding of all scruple and doubtfulness.

3. In particular a sick person, if he feels his conscience troubled in any weighty matter, should make a special confession of his sins, that the priest may absolve him if he humbly and heartily desire it”,

to which the proviso to Canon 113 of the Code of 1603 adds:

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

Criminal law

Last year we considered whether communications between clergy and penitents were privileged in the light of Articles 8 & 9 and the “seal of the confessional”, and concluded that the evidence suggested the short, but unhelpful answer – maybe “yes” but probably “no”… However, in secular legal terms the internal rules of other religious bodies are not on all fours with the canon law of the C of E, for as Mark Hill notes [5]

”An Anglican priest is in a different position from a priest of another denomination, since the duty of confidentiality which attaches to him is part of the law of the land”.

The current (2011) edition of volume 34 of Halsbury, on ecclesiastical law, states at p 813 that

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

Different views have been expressed on priest-penitent privilege, for which there has been little recent judicial consideration. Bursell observes [6]

“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.”

Furthermore, Hill suggests [7] that in criminal proceedings it is likely that a trial judge would exercise the discretion granted by the Police and Criminal Evidence Act 1984 ss 76,78 & 82(3) and exclude evidence of a confession made to a priest.

Anglican Church in Australia

We considered developments in Australia earlier this year in our post Oz Anglicans reject seal of confessional, in which we said:

“The amendments were prompted by earlier considerations and concerns relating to child sexual abuse [8], and to “ensure that canon law does not impose a duty on a minister who receives a confession of a serious offence to keep the confession confidential unless reasonably satisfied that the person making the confession has reported the serious offence to the police.” The term “serious offence” in the amended Canon means:

“(1) . . . a criminal offence of the Commonwealth, of a State or of a Territory, or of another country which is equivalent to such a criminal offence of the Commonwealth, of a State or of a Territory: (a) involving a sexual element that is committed against, with or in the presence of a child; or (b) involving child exploitation material; or (c) involving domestic violence; or (d) punishable by imprisonment for life or for a term of five years or more.

(2) Where a person confesses that he or she has committed a serious offence an ordained minister is only obliged to keep confidential the serious offence so confessed where the ordained minister is reasonably satisfied that the person has reported the serious offence to the police.”

The two Bills received the backing of the full Synod; but the legislation only becomes active in an individual diocese once it adopts it, although most of the Church’s 23 dioceses are expected to vote in favour of the decision by the end of the year.”

Private Members’ Motions

One of the various ways debates at General Synod can be triggered is for a member of the Synod to table a ‘Private Member’s Motion’ (PMM), and the likelihood of it being debated is dependent upon a number of factors. In order to ascertain the degree of interest in each motion, the Synod’s Business Committee arranges for the text of a motion to be available during each group of sessions, together with a list that is open for ‘signature’ by other members of the Synod. It is also possible for members to sign PMMs electronically between groups of sessions. When putting together the agenda for the next meeting of the Synod, the Business Committee has regard to the number of signatures each motion has received in deciding which should be debated.  Generally there is only time for one or two PMMs to be debated in each group of sessions.

While the motion with the most signatures is often the one selected there can be reasons for selecting another that has also attracted considerable support, e.g. it might be more time-critical. Once a motion has been open for signature for three groups of sessions, it is removed from the Agenda if it has not attracted 100 signatures.

Comment

In July this year the Home Secretary announced  [Hansard HC 7 July 2014 Vol  584 Cols 23 to 26] that, as part of the Government’s response to concerns regarding child abuse, it intended to establish an independent inquiry panel of experts in law and child protection to consider whether public bodies and other non-state institutions have taken seriously their duty of care to protect children from sexual abuse. Following this announcement, the Home Secretary is reported to have said that the review, (now to be headed by Fiona Woolf CBE, JP), would examine the case for mandatory reporting: this view is shared by NSPCC chief Peter Wanless, who is heading the review looking at concerns that the Home Office failed to act on allegations of child sex abuse made in the 1980s. It seems likely, therefore, that the seal of the confessional will come under further scrutiny in the UK.

With regard to the canon law implications, the story in The Mail on Sunday quotes “a Church of England spokesman” as saying:

“‘The guidelines for clergy are being considered for debate in November at General Synod. The Australian model is one of a number of options which will be considered as part of the on-going discussions”.

Although a quasi-legislative fix (i.e. guidelines for the clergy) could be introduced relatively quickly by means of a House of Bishops Statement, as we have seen with the Statement on Same Sex Marriage, this would cause difficulties in its implementation and problems for its enforcement were a challenge to be made. (It is estimated that about a quarter of CofE clergy administer the Sacrament of Reconciliation, i.e. Confession.) However, a change to the Proviso to Canon 113 would require full synodical consideration and could take considerably longer.

Thus in answer to the question “Is the CofE to axe seal of confessional?”, it seems inevitable that some changes will need to be introduced but: these may take some time; and will certainly put pressure on the Roman Catholic church, as in Australia, the US and elsewhere.

____________________________

[1] The list of PMMs on the CofE web page is correct as of 16 July 2014.

[2] Page 10, including footnotes 6 and 7: Recommendations on Reporting.

[3] “If any person confesses any secret or hidden sin to a Priest for the unburdening of his conscience and to receive spiritual consolation and ease of mind and absolution from him, such Priest shall not either by word, writing, or sign, directly or indirectly, openly or covertly, or in any way whatsoever, at any time reveal and make known to any person whatsoever, any sin, crime, or offence so committed to his trust and secrecy; neither shall any Priest make use of knowledge gained in the exercise of such ministry to the offence or detriment of the person from whom he received it, even if there be no danger of betraying the identity of such person; neither shall any Priest, who is in a position of authority in any place, make use of any such knowledge in the exercise of that authority.”

[4] “The Seal of the Confessional”, (1990) 2 Ecclesiastical Law Journal  pp 84 – 109.

[5] Ecclesiastical Law (OUP 2007) at pp 179–80.

[6] (n4)89.

[7] (n)180.

[8] a) the principles relating to private confessions of child sexual abuse and the scope of section 2 of the Canon concerning confessions 1989 and the proviso to Canon 113 of the Canons of 1603 set out in the report of the Clergy Discipline Working Group dated 23rd March 2001; (b) the principles relating to private confessions of child sexual abuse in the protocol entitled Private Confessions: Pastoral Guidelines with special reference to Child Sexual Abuse of the House of Bishops which was agreed on 8 March 2006 and revised on 1 March 2011; and (c) the Report dated January 2014 to the Standing Committee by the Doctrine Commission on Confidentiality and Confessions.