Religious Confession Privilege and the Common Law

Copyright

Contents

Table of Cases in Alphabetical Order

Chronological Table of Statutes

Preface to the Book

Introduction

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

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

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

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

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?

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

Chapter Eleven Religious Confession Privilege in South Africa

Introduction

The Law Before 1996

The Law After 1996

Conclusion

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

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

Bibliography

Index