IICSA: Some more legal views

Comments on the seal of the confessional 

On 13 March 2018, the IICSA inquiry on the extent of any institutional failures to protect children from sexual abuse within the Anglican Church received oral evidence from the Revd Canon Dr Rupert Bursell QC. On 4 July 2019, the Inquiry heard further evidence from Dr Bursell: in addition to the transcript, there were three evidence documents from Dr Bursell: ACE025279-1, (8 November 2017); ACE027523, (13 May 2019); and ACE027554, (23 May 2019).

We summarized the earlier evidence session in our post of 15 March 2018, IICSA: Some legal views, with particular reference to: the meaning of “due regard”; the seal of the confessional; the dysfunction in the Chichester Diocese, resulting from differences in churchmanship; Dr Bursell’s reservations concerning the CDM; The Carlile Report; and Spiritual abuse.

In his oral evidence on 4 July 2019, Dr Bursell describes the development of the seal of the confessional from pre-Reformation times to the present day, a history with which all English canon lawyers will be familiar, [up to 20/5]. Relevant points from this section of his evidence are summarized below. The questioning then moved to Dr Bursell’s views of the Church of England Working Party on the Seal of the Confessional, which is the subject of his third written Witness Statement ACE027554. However, underlying the evidence session is the following exchange [41/3]:

“Ms Scolding: If the church doesn’t legislate, do you think the state should?

Dr Bursell. I don’t believe the church will, because I think that — there are just too many internal problems about doing it and reaching a conclusion. Therefore, if children are to be protected, I think that the parliament has to intervene.”

Development of the Seal of the Confessional

  • Distinction between general confession vs auricular (private) confession, [5/14].
  • Boundary between auricular confession and pastoral conversation, and the need for greater clarity in their definition/application, [6/8].
  • Auricular confession is seen between the penitent and God himself, rather an a conversation, as it were, between the priest and the penitent [7/5].

[This reflects the recent Note of the Apostolic Penitentiary on the importance of the internal forum and the inviolability of the sacramental seal, 1 July 2019 from the Roman Catholic Church. In this, confession is described as: “The priest confessor, acting in persona Christi capitis, knows the sins of the penitent “not as a man, but as God”, according to a well-known expression of Saint Thomas Aquinas.” ].

  • The Proviso to Canon 113 still applies; this was a reflection of the pre-Reformation Canon law, which “certainly mandated the seal of the confessional within the law of England”, [8/25].
  • Whether confession is regarded as a “sacrament” in the Church of England, and the position in the Roman Catholic Church, [19/1 to 20/4].

Church of England Working Party on the Seal of the Confessional

Discussion on the deliberations of the Church of England Working Party on the Seal of the Confessional (“the Working Party”) begin at [20/21] when Ms Scolding explored the differences between its views and those of Dr Bursell.

  • “The Working Party points out, in my view quite correctly, that there’s a difference between a pastoral conversation, even if it’s one in which you’re seeking guidance from a priest, and the auricular confession where, if it exists, the seal of the confession would apply.  If there is a distinction, then you’ve got to define either what pastoral guidance is or what auricular confession is. The difficulty is that there is no definition of the latter, and that is recognised by the Working Party itself, I think at paragraph 3.46. It says it again at 3.48.” [21/10].
  • The basic requirements for a valid (or” formal”) confessions are outlined in document ACE027523_021 and discussed at [22/14] to [29/4]. These are:
    • It is made by a baptised person to a priest, in a language or in a manner comprehensible to the priest.
    • The person making the confession: has real contrition; actually seek absolution for their sins. (this includes the necessity that the confession is unfeigned); makes restitution (or reparation) for those sins, in appropriate cases; makes satisfaction for those sins, in appropriate cases ,
    • (arguably) the penitent receives absolution.

[It is Dr Bursell’s view that “probably the majority of priests would , within the Anglican Church, that it’s still a confession even though absolution has not been given. The Working Party argues that because, looking at the proviso to 113, the penitent must have an intention to be seeking absolution, therefore, they say, the actual absolution doesn’t matter. I think that’s a logical non-sequitur. I don’t see how the one follows from the other. But certainly many priests — many Canon lawyers maybe — would not agree, which is why I’ve put “arguably”.]

  • On the duty to report in the Terrorism Act, the Legal Advisory Commission’s opinion indicates that that applies within the Church of England. [The sections of the Terrorism Act 2000 referred to are sections 19(1) Disclosure of information and 38B Information about acts of terrorism]. [35/14]
  • With regard to the “let-out clauses” in the Act, Dr Bursell said: “Let-out clauses are very dangerous because it depends on who interprets them, and one of the problems with the Australian Canons is that it leaves the priest saying, “Oh, well, I think this is significant harm, but is it?”, and a court would necessarily ask, “Well, what was the harm?”, and then people argue, well, then the seal of the confession is broken” [36/15]
  • In summing up the approach of the Anglican Church In Australia, Dr Bursell said that he would not advocate the Australian model “I think it is too complicated and I think that it leaves far too much to the individual who finds other reasons for not reporting, which is why I think that there should be a mandatory reporting, if the priest or anybody knows — has knowledge of or has reasonable suspicion of sexual abuse. Now, immediately one says “reasonable suspicion”, it of course brings in a subjective term. But it is well known within English law and it seems to me, therefore, is acceptable [36/22 to 37/11].
  • He also said “May I also add that the Church of England Faith and Doctrine Commission also says there is no definition of what auricular confession is. It is not just me. So if the Working Party and the Faith and Doctrine Commission says there’s no definition, how can you draw the boundary as to where it starts and where it ends? It seems to me perfectly fundamental. [38/2].
  • With regard to national vs diocesan responsibilities for safeguarding:

I’ve got absolutely no doubt that the rolling out of safeguarding has to be done at diocesan level. I equally have no doubt that the principles, the training manuals, whatever you want to call it, must be done at national level, because I’m aware, within the last ten years, of a Diocesan Safeguarding Officer saying, “I don’t agree with what the national churches say. Therefore, I am going to give different training”. That’s not good enough, because an individual does not  know better than the whole, certainly in this regard when it has been properly rolled out. I accept that a lot of the guidance is a little opaque sometimes.” [44/14]

  • This guidance is written in the language of the safeguarding professional, just as lawyers write in legalese,” but it is a question then — all right, the safeguarders understand it. It may be that the senior end of the church understand it, though not always. I refer in my witness statement to a bishop who didn’t understand “have due regard to” [45/1]
  • The separation of the judicial and pastoral roles inherent in the Clergy Discipline Measure were considered [46/10 to 49/3] in which Dr Bursell suggests that the judicial role of the bishop could be delegated ab initio, “leaving the bishops to deal with the pastoral side, which they are trained to do, experienced in doing. They are certainly not experienced to act judicially, as they accept”, [47/21].

[Under Canon C18, (2) Every bishop has within his diocese jurisdiction as Ordinary except in places and over persons exempt by law or custom; and (3). Such jurisdiction is exercised by the bishop himself, or by a Vicar-General, official, or other commissary, to whom authority in that behalf shall have been formally committed by the bishop concerned. See Philip Jones’ The Bishop: Pastor, Minister and Ordinary].


References in this post relate to the Day 4 Transcript and are in the form [page number/line number]. In his witness statement of 1 May 2019, [A1/2 ACE 26967] Adrian Isles addresses the criticism of the CDM process raised in Dr Bursell’s witness statement [Al-2/1 ACE05279].

Cite this article as: David Pocklington, "IICSA: Some more legal views" in Law & Religion UK, 6 July 2019, https://lawandreligionuk.com/2019/07/06/iicsa-some-more-legal-views/

2 thoughts on “IICSA: Some more legal views

  1. Pingback: Law and religion round-up – 7th July | Law & Religion UK

  2. I totally endorse Dr Bursell’s suggestion that the judicial role of the bishop could be delegated ab initio, “leaving the bishops to deal with the pastoral side, which they are trained to do, experienced in doing. They are certainly not experienced to act judicially, as they accept”, [47/21].
    Recent letters to the Church Times clearly show that the system of suspending a priest without any explanation, and for an idefinite period, is unreasonable, unfair and unjust. Recently I’ve had knowledge of someone I know being put in that position. What I’ve heard just increases my concerns. Both parties to any allegation need justice to be seen to be done.

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