Priest–penitent privilege in England

The doctrine of priest–penitent privilege does not appear to apply in English law. The orthodox view is that under the law of England and Wales privileged communication exists only in the context of legal advice obtained from a professional adviser. A statement of the law on priest–penitent privilege is contained in the nineteenth century case of Wheeler v. Le Marchant:

In the first place, the principle protecting confidential communications is of a very limited character. ... There are many communications, which, though absolutely necessary because without them the ordinary business of life cannot be carried on, still are not privileged. ... Communications made to a priest in the confessional on matters perhaps considered by the penitent to be more important than his life or his fortune, are not protected.

The foundation of the rule protecting communications to attorneys and counsel was stated by Henry Brougham, 1st Baron Brougham and Vaux, Lord Chancellor, in an exhaustive judgment on the subject in the case of Greenough v. Gaskell (1833) 1 Mylne & Keen 103, to be the necessity of having the aid of men skilled in jurisprudence for the purpose of the administration of justice. It was not, he said, on account of any particular importance which the law attributed to the business of people in the legal profession or of any particular disposition to afford them protection, though it was not easy to see why a like privilege was refused to others, especially to medical advisers.

A similar opinion was expressed by Sir George James Turner, Vice-Chancellor in the case of Russell v. Jackson (1851) 9 Hare 391, in the following words:

It is evident that the rule which protects from disclosure confidential communications, between solicitor and client does not rest simply upon the confidence reposed by the client in the solicitor, for there is no such rule in other cases, in which, at least, equal confidence is reposed: in the cases, for instance, of the medical adviser and the patient, and of the clergyman and the prisoner.

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