Constance Kent case

From Wikipedia, the free encyclopedia

The Constance Kent case was an 1865 English murder trial that aroused a seried of questions about priest-penitent privilege in the UK.

1 Committal
2 Press excitement
3 Parliamentary comment
4 Bibliography

[edit] Committal

In 1865 Constance Kent was prosecuted for a murder committed five years previously. She made a statement confessing her guilt to a Church of England clergyman, the Rev. Arthur Wagner, and she expressed to him her resolution to give herself up to justice. He assisted her in carrying out this resolution and he gave evidence of this statement before the magistrates. But he prefaced his evidence by a declaration that he must withhold any further information on the ground that it had been received under the seal of "sacramental confession" (see: Seal of the Confessional). He was but slightly pressed by the magistrates, the fact of the matter being that the prisoner was not defending the charge.

[edit] Press excitement

At the Assizes, Constance Kent pleaded guilty and her plea was accepted so that Mr. Wagner was not again called. The position which Mr. Wagner assumed before the magistrates caused much public debate in the press. There was considerable expression of public indignation that it should have been suggested that Mr. Wagner could have any right as against the state to withhold evidence on the ground which he had put forward. The indignation seems to have been largely directed against the assumption that sacramental confession was known to the Church of England.

[edit] Parliamentary comment

Questions were asked in both Houses of Parliament. In the House of Lords, Richard Bethell, 1st Baron Westbury, Lord Chancellor, in reply to George Thomas John Nugent, 1st Marquess of Westmeath, stated that:

...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 even extend the privilege of refusing to answer to Roman Catholic clergymen in dealing with a person of their own persuasion.

He stated that it appeared that an order for commitment had in fact been made against Mr. Wagner. If that is so, it was not enforced.

On the same occasion Frederic Thesiger, 1st Baron Chelmsford, a previous Lord Chancellor, stated that the law was clear that Mr. Wagner had no privilege at all to withhold facts which came under his knowledge in confession. Lord Westmeath said that there had been two recent cases, one being the case of a priest in Scotland, who, on refusing to give evidence, had been committed to prison. As to this case Lord Westmeath stated that, upon an application for the priest's release being made to the Home Secretary, Sir George Grey, 2nd Baronet, the latter had replied that if he were to remit the sentence without an admission of error on the part of the Catholic priest and without an assurance on his part that he would not again in a similar case adopt the same course, he (the Home Secretary) would be giving a sanction to the assumption of a privilege by ministers of every denomination which, he was advised, they could not claim. The second case was R v. Hay.

Lord Westbury's statement in the House of Lords drew a protest from Henry Phillpotts, the then Bishop of Exeter, who wrote him a letter strongly maintaining the privilege which had been claimed by Mr. Wagner. The bishop argued that the canon law on the subject had been accepted without gainsaying or opposition from any temporal court, 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. From the bishop's reply to Lord Westbury's answer to his letter it is apparent that Lord Westbury had expressed the opinion that the 113th canon of 1603 simply meant that the "clergyman must not mero motu and voluntarily and without legal obligation reveal what is communicated to him in confession". He appears, also, to have expressed an opinion that the public was not at the time in a temper to bear any alteration of the rule compelling the disclosure of such evidence.