R v Hay

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R v Hay (1860) 2 Foster and Finlaison 4, was an English case that was cited by the Catholic Encyclopedia as a challenge to the conventional view of priest-penitent privilege in the UK.


The case was tried before Mr. Justice Hill at Durham Assizes. The complainant alleged that he had been robbed of his watch by the defendant and another man. A police inspector had subsequently received the watch from Fr. Kelly, a priest in the neighbourhood, upon his calling at the presbytery. Fr. Kelly was summoned as a witness by the prosecutor, and as the oath was about to be administered to him he objected to its form, not, he explained, to that part of it which required him to tell the truth and nothing but the truth, "but as a minister of the Catholic Church", he said, "I object to that part which states that I shall tell the whole truth". The judge answered him: "The meaning of the oath is this: it is the whole truth touching the trial which you are asked: which you legitimately, according to law, can be asked. If anything is asked of you in the witness box which the law says ought not to be asked, for instance, if you are asked a question the answer to which might criminate yourself, you would be entitled to say, 'I object to answer that question'". The judge told him that he must be sworn.

When asked by counsel from whom he had received the watch Fr. Kelly replied: "I received it in connexion with the confessional". The judge said: "You are not asked at present to disclose anything stated to you in the confessional: you are asked a simple fact: from whom did you receive that watch which you gave to the policeman?". Fr. Kelly protested: "The reply to a question would implicate the person who gave me the watch, therefore I cannot answer it. If I answered it my suspension for life would be a necessary consequence. I should be violating the laws of the Church as well as the natural laws". The judge said: "On the ground that I have stated to you, you are not asked to disclose anything that a penitent may have said to you in the confessional. That you are not asked to disclose: but you are asked to disclose from whom you received the stolen property on the 25th December last. Do you answer or do you not?". Fr. Kelly replied: "I really cannot, my Lord", and he was imprisoned forthwith for contempt of court.

The Catholic Encyclopedia contends that it may be fairly deduced from Mr. Justice Hill's words that he would not have required Fr. Kelly to disclose any statement which had been made to him in the confessional, and, in this sense, his words may be said to give some support to the Catholic claim for privilege for sacramental confession. The Encyclopedia further observes, "But we need not wonder that he was not ready to extend the protection to the act of restitution, though, even in the eyes of non-Catholics, it ought, in all logic, to have been entitled to the same secrecy, in view of the circumstances under which, obviously, it was made."

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