A personal seeking pastoral guidance and counsel from clergy has the right to expect that the minister concerned will not pass on to a third party confidential information so obtained, without consent. If a person has been consulted and has given permission, information may be given to others.
The general duty not to disclose information, even given in confidence, does not extend to information concerning the commission of a crime or other misconduct, either in the past, or in the future, provided that it is in the public interest that the information should be disclosed.
If a minister is summoned to give evidence in court he or she is subject to the general rule that a witness must tell what it is that he or she knows.
In the case of a request for a reference for someone about whom a minister has information concerning accusations of child abuse, or who is about to be appointed to, or is actually in, a post which gives access to children, bearing in mind Article 8(2) of the European Convention on Human Rights disclosure should only be made if there is a ‘pressing need’, taking into account such matters as
- the minister’s own view as to the truth of what is alleged,
- the interest of the third party in obtaining the information (much greater if, for example, X is seeking employment in a children’s hostel, than if he or she is seeking to work in an old people’s home), and
- the degree of risk likely to arise if the disclosure is not made, which will involve consideration of such matters as the length of time that has elapsed since the behaviour the minister is aware of took place, the age of the children to which X will have access, and which of the above categories applies.
The decision is rarely likely to be easy, and the consequences of making a wrong decision could be serious. Clergy are strongly advised to consult the Diocesan Registrar who will be able to advise whether further legal advice is needed on the facts of a particular case.
Canon 113 of the Canons of 1603 states
"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 we do straightly charge and admonish him that he do not at any time reveal and make know 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."
This was a restatement of canon law defined in Canon 21 of the First Lateran Council of 1215 and was not repealed when the new code of canons was promulged in 1964 and 1969. In 1959 the Convocation of Canterbury declared by Act of Convocation
"That this House reaffirms as an essential principle of Church doctrine that if any person confess his secret and hidden sin to a priest for the unburdening of his conscience, and to receive spiritual consolation and absolution from him, such priest is strictly charged that he do not at any time reveal or make known to any person whatsoever any sin so committed to his trust and secrecy."
This privilege has never been tested in a court. If a priest with knowledge received in the circumstances described in Canon 113 is summoned to give evidence in Court, he or she should consult the Diocesan Registrar, and should claim privilege, even though this might not be upheld.
In other cases, if a minister discloses information in breach of confidence, or in a way that would be unlawful under the provisions of the Human Rights Act 1998, this will almost certainly amount to "conduct unbecoming the office and work of a clerk in holy orders" and fall to be dealt with under the Ecclesiastical Jurisdiction Measure, or its successor.