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64-526: Constance Emily Kent (1844–1944) was an English woman who confessed to the murder of her half-brother, Francis Saville Kent, in 1860, when she was aged 16 and he aged three. The case led to high-level pronouncements that there was no longer any ancient priest-penitent privilege in England and Wales . Kent's death sentence was commuted to life imprisonment, and she was released after serving twenty years. In later life, she changed her name to Ruth Emilie Kaye , became

128-436: A blanket, had knife wounds on his chest and hands, and his throat was slashed so deeply that he was almost decapitated . Francis's nursemaid, Elizabeth Gough, was initially arrested. However, Gough was released when the suspicions of Detective Inspector Jack Whicher of Scotland Yard moved to the boy's 16-year-old half-sister, Constance. She was arrested on 16 July but released without trial owing to public opinion against

192-521: A canon purporting to forbid clergymen from appearing as witnesses in any action which a subject might lawfully bring in the King's courts would, seemingly, be void as against the subject. The fundamental principle is that a witness shall give in evidence the whole truth that he knows concerning the matter in dispute, and that the parties to the dispute are entitled to have that evidence given. The rules which regulate and which, in certain exceptional cases, restrict

256-404: A case ( R v Sparkes ) and that the prisoner, in that case, was a " papist " and that it came out at the trial that he had made a confession of his capital crime to a protestant clergyman. This confession had been received in evidence by the judge and the prisoner was convicted and executed. The Catholic Encyclopedia contends that it is "obvious" that neither of the parties could have regarded

320-415: A client and his lawyer professionally. But the principle has developed so as now to include all professional communications passing in a professional capacity, and to the information and belief founded thereon, see: Minet v. Morgan (1873) 8 Chancery Appeals, 366; Lyell v. Kennedy (1883) 9 AC 90. In the former case Roundell Palmer, 1st Earl of Selborne , Lord Chancellor, said: There can be no doubt that

384-450: A lack of evidence of Kent's making of any mosaics and the fact that "none of the true crime writers on this topic ... say where this information is sourced from" – as the myth of the mosaics. Constance immigrated to Australia early in 1886 and joined her brother William in Tasmania , where he worked as a government adviser on fisheries. She changed her name to Ruth Emilie Kaye and trained as

448-454: A light to see by during the act of murder. The murder was not a spontaneous act, it seems, but one of revenge, and it was suggested that Constance had at certain times been mentally unbalanced. There was much speculation at the time that Constance's confession was false. Many supposed that her father, a known adulterer , was having an affair with Elizabeth Gough and murdered the child in a fit of rage after coitus interruptus . The theory fitted

512-581: A nurse and for twenty years was matron of a nurses' home in East Maitland, New South Wales . She died at the age of 100. Constance Kent was born in Sidmouth , Devon , England, on 6 February 1844, the fifth daughter and ninth child of Samuel Saville (or Savill) Kent (1801–1872), an Inspector of Factories for the Home Office , and his first wife, Mary Ann (1808–1852), daughter of prosperous coachmaker and expert on

576-938: A nurse at The Alfred Hospital in Prahran , Melbourne , Victoria , before being appointed sister-in-charge of the Female Lazaret at the Coast Hospital , Little Bay , in Sydney , New South Wales . From 1898 to 1909, she worked at the Parramatta Industrial School for Girls . She lived in the New South Wales town of Mittagong for a year, and was then made matron of the Pierce Memorial Nurses' Home at East Maitland , serving there from 1911 until she retired in 1932. Constance Kent died on 10 April 1944, aged 100, in

640-462: A pattern with the senior Kent, who had romanced the family nanny, Mary Drewe Pratt, while his first wife Mary Ann Kent (Constance's mother) was dying, and subsequently married Pratt (Francis's mother). Many were suspicious of the senior Kent from the start, including the novelist Charles Dickens . However, in her book The Suspicions of Mr Whicher or The Murder at Road Hill House (2008), author Kate Summerscale concluded that if Constance's confession

704-530: A position he held until 1895. During this time he experimented with culturing pearls on Thursday Island ; his experiments were successful, and modern-day spherical cultured pearls are primarily the result of discoveries he made. These discoveries were later patented by Dr.  Tokichi Nishikawa of Japan, who had heard of Saville-Kent's techniques. Later, Saville-Kent went on to chair the Royal Society of Queensland from 1889 to 1890. His book documentation of

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768-482: A potentiality of an expansion of this side of the law of evidence. "I have always understood", Lord Kenyon said, giving judgment, "that the privilege of a client only extends to the case of the attorney for him. Though whether or not it ought to be extended farther, I am happy to think may be inquired into in this cause." He meant that the matter would not be definitely concluded as an appeal would be possible. It seems to me at least not improbable that, when this question

832-497: A prisoner: but if he chooses to disclose them, I shall receive them in evidence. In R v Shaw (1834) 6 C& P 392, a witness who had taken an oath not to reveal a statement which had been made to him by the prisoner, was ordered to reveal it. "Everybody", said Mr. Justice Patteson, who tried the case, "except counsel and attorneys, is compellable to reveal what they may have heard." In the case of Greenlaw v King (1838) 1 Beav 145, Henry Bickersteth, 1st Baron Langdale , Master of

896-554: A private hospital in the Sydney suburb of Strathfield . On 11 April 1944, The Sydney Morning Herald reported that she was to be cremated at the nearby Rookwood Cemetery Crematorium. Priest%E2%80%93penitent privilege in England 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

960-484: 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. Lord Westbury stated that it appeared that an order for committal for contempt of court had in fact been made against Wagner. If that

1024-400: A result of her research, Summerscale comes to the conclusion that no matter whether the murder of Francis was committed by Constance or William alone, or by both of them, it was an act of revenge against their father for turning his attention to the children of his second marriage, of whom Francis was his reported favourite. At Devizes Assize Court , Constance Kent pleaded guilty, and her plea

1088-593: A spiritual capacity. The judge, Baron of the Exchequer Sir Edward Hall Alderson , strongly intimated to counsel that he thought such conversations ought not to be given in evidence, saying that there was an analogy between the necessity for privilege in the case of an attorney to enable legal evidence to be given and that in the case of the clergyman to enable spiritual assistance to be given. He added, "I do not lay this down as an absolute rule: but I think such evidence ought not to be given". In 1865,

1152-576: A statement. The learned judge said to the plaintiff, who was conducting his case in person: "You are not entitled to ask what questions priests ask in the confessional or the answers given." The Catholic Encyclopedia contends that the current view of the law is based on R v Gilham ( supra ) but contends that the decision has been misconstrued. The encyclopedia goes on to identify some alternative views. In an anonymous case reported in Skinner's Reports , 404, in 1693, Lord Chief Justice John Holt said that

1216-461: Is again raised in an English court of justice, that court will decide it in favour of the inviolability of the confession, and expound the law so as to make it in harmony with that of almost every other Christian state. In William Mawdesley Best 's work on The Principles of the Law of Evidence there is not only an expression of opinion that the privilege should be accorded, but one to the effect that there

1280-514: Is an instance. In view of the absolute repudiation by the state of the jurisdiction of the Catholic Church and in view of the abandonment of the sacrament of confession as practised before the Reformation , one may fairly presume that, from the date of that event, confession would no longer have been regarded as a ground from motives of public policy, entitling to an exemption from the principle of

1344-463: Is ground for holding that the right to the privilege is existent. William Saville-Kent William Saville-Kent (10 July 1845 – 11 October 1908) was an English marine biologist and author. Born in the town of Sidmouth in Devon, South West England on 10 July 1845, William Saville-Kent was the son of Samuel Saville Kent (7 July 1800 – 5 February 1872) and Mary Ann Windus (b. 1808 – May 1852), who

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1408-512: Is so, it was not enforced. On the same occasion, Lord Chelmsford , a previous Lord Chancellor, stated that the law was clear that Wagner had no privilege at all to withhold facts which came to 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

1472-514: The Book of Common Prayer in the service for the visitation of the sick, and, thus, had been sanctioned by the Act of Uniformity . Phillpotts was supported by Edward Lowth Badeley who wrote a pamphlet on the question of priest–penitent privilege. 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

1536-476: The Canons of 1603 , though binding on the clergy, do not bind the laity. The reason for this is that though canons, in order to be valid must, as these did, receive the royal sanction, they are made in convocation, and, thus, without representation of the laity. Accordingly, if this canon infringed a right enjoyed by the lay subjects of the realm it would, seemingly, in as far as it did so, not be valid against them. Thus,

1600-587: The Great Barrier Reef was the pioneering publication, attracted worldwide attention, and was for decades the definitive work on this landform. His sister Constance had joined him in Australia in 1886, changing her name to Ruth Emilie Kaye and training as a nurse. Saville-Kent was a pioneer of the concept of sustainable fisheries. While at the Brighton Aquarium he witnessed a lobster lay eggs and charted

1664-557: The Gunpowder Plot , the defence that the plot had been communicated to him by Robert Catesby under the Seal of the Confessional was not rejected out of hand by the court, perhaps a surprising decision given the political climate. There has never been any UK legislation, one way or the other, about the disclosure in evidence of religious confession. If the privilege had ceased to be part of

1728-541: The Portland Vase , Thomas Windus of Stamford Hill , London . Sometime during the night of 29—30 June 1860, Francis Saville Kent, who was almost four years old, disappeared from his father's residence, Road Hill House, in the village of Rode (spelt "Road" at the time), then in Wiltshire . Francis's body was later found in the vault of a privy-house on the property. The child, still dressed in his nightshirt and wrapped in

1792-709: The Royal Society to conduct a dredging survey off Portugal. He worked at the Brighton Aquarium (1872–1873), then at the Manchester Aquarium (1873–1876). He went on to work for various other aquariums, before returning to Brighton in 1879. Saville-Kent married in 1872, but his wife died three years later. He remarried in 1876. On the recommendation of Huxley, in 1884 Saville-Kent became Inspector of Fisheries in Tasmania . In 1889, he became Commissioner of Fisheries for Queensland , and in 1892, Commissioner of Fisheries for Western Australia ,

1856-567: The canon law was the law of England. Thus the seal of the confessional had great import in the secular courts. During the Reformation, the Church of England was established when King Henry VIII broke from the Roman Catholic Church. The respect of the courts for the Seal of the Confessional was less compelling during this period. During the trial of Henry Garnet , for conspiracy in

1920-466: The common law , legislation would be necessary to re-establish it. If it survived in the common law it can only have done so through the allowance of it in the case of the Church of England , from where it may be possible to argue its extension to other creeds. It was decided by the Court of King's Bench in a judgment delivered by Philip Yorke, 1st Earl of Hardwicke in the case of Middleton v Croft that

1984-417: The "clergyman must not ex 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. Constance Kent was sentenced to death , but this was commuted to life in prison owing to her youth at

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2048-492: The Rolls said: The cases of privilege are confined to solicitors and their clients; and stewards, parents, medical attendants, clergymen, and persons in the most closely confidential relation, are bound to disclose communications made to them. In R v Griffin (1853) 6 Cox CC 219 , a Church of England workhouse chaplain was called to prove conversations with a prisoner charged with child-murder whom, he stated, he had visited in

2112-576: The accusations of a working-class detective against a young lady of breeding. After the investigation collapsed, the Kent family moved to Wrexham and sent Constance to a finishing school in Dinan , France . Constance was prosecuted for the murder five years later, in 1865. She had made a statement confessing her guilt to an Anglo-Catholic clergyman, Arthur Wagner , and expressed to him her resolution to give herself up to justice. Wagner assisted her in carrying out

2176-459: The admission of evidence against a prisoner of an acknowledgment of his guilt which had been induced by the ministrations and words of the Protestant prison chaplain. The acknowledgment of the murder with which he was charged was made by the prisoner to the jailer and, subsequently, to the authorities. The Catholic Encyclopedia contends that he appears to have made no acknowledgment of his crime to

2240-605: The assumption that sacramental confession was known to the Church of England . Questions were asked in both Houses of Parliament . In the House of Lords , Lord Westbury , the Lord Chancellor , in reply to the 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

2304-424: The chaplain himself and that the question of confessional privilege did not arise. In 1828, the case of Broad v Pitt 3 C&P 518, where the privilege of communications to an attorney was under discussion, Best CJ said: The privilege does not apply to clergymen since the decision the other day in the case of Gilham [ supra ]. I, for one, will never compel a clergyman to disclose communications made to him by

2368-406: The confession as sacramental . Lord Kenyon said that he would have paused before admitting such evidence, adding But this case differs from it. The Popish religion is now no longer known to the law of this country, nor was it necessary for the prisoner to make that confession to aid him in his defence. But the relation between attorney and client is as old as the law itself. In this case a priest

2432-478: 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. Moreover, in the relationship of lawyer and client the privilege was confined to communications between them made in respect of the particular litigation and it did not extend to communications generally passing between

2496-442: The disclosure of all the truth known about the cause, were it to be civil or criminal. In the case of Du Barré v Livette (1791) Peake 77, Lord Kenyon again held that the privilege would extend so as to preclude an interpreter between a solicitor and a foreign client from giving evidence of what had passed. In the report of that case the plaintiff 's counsel informed the court that Mr. Justice Buller had recently tried on circuit

2560-411: The factories, Samuel's “duties required him to inspect factories that employed women and children.” Despite having “ambitions for promotion,” Samuel “suffered from the effects of local gossip and disapproval,” as a consequence of him being a “known adulterer.” Samuel's salacious reputation caused the family to move fairly often. Saville-Kent's childhood was marred by several unfortunate events. First

2624-427: The family and servants were asleep, she had opened the shutters and window in the drawing room , taken Francis from his room wrapped in a blanket that she had taken from between sheet and counterpane in his cot (leaving both these undisturbed or readjusted), left the residence and then killed him in the privy-house with a razor stolen from her father. It had been necessary to hide matches in the privy-house beforehand for

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2688-416: The giving of evidence are the growth of practice and of the rulings of judges, occurring mainly within the last two to three centuries (see the judgment of Parke B in the case of R v Ryle , 9 M. & W., 244). The rule of public interest immunity which excludes evidence, the requiring of which would be contrary to public policy , as may occur in relation to the conduct of the business of a state department,

2752-448: The law of the Court as to this class of cases did not at once reach a broad and reasonable footing, but reached it by successive steps, founded upon that respect for principle which usually leads the Court aright. Various commissions on law reform have opposed any extension to the current scope of professional privilege. Before the Reformation , England was a Roman Catholic country and

2816-464: The matters mentioned in sacramental confession, was told by the judge that he was not bound to answer it. The writer was present in court at the hearing of the trial and, as far as his recollection serves him, he understood Mr. Justice Ridley to say something to the effect that the judges had come to this mind in the matter, but the report of the trial in The Times of 8 February 1901, does not contain such

2880-415: The murder trial of Constance Kent aroused a number of parliamentary questions whose answers reaffirmed the limited scope of professional privilege in England. In this 1860 case, a Catholic priest was committed for contempt of court for failing to give evidence as to how he came by an allegedly stolen watch on the grounds that it came into his possession by way of the confessional. The court insisted that he

2944-447: 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

3008-596: The priest's release being made to the Home Secretary , Sir George Grey , 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

3072-455: The privilege would extend to a law scrivener , because he would be counsel to a man with whom he would advise. But he is reported to have added "otherwise of a Gentleman, Parson etc." Edward Badeley maintains that Lord Holt did not mean this last assertion to be general and exclusive. This may conceivably be so. It is recorded in another anonymous case, in Lord Raymond's "Reports", 733, that

3136-420: The resolution, and he gave evidence of this statement before the magistrates but 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" . He was but lightly pressed by the magistrates, as the prisoner was not contesting the charge. The substance of Constance's confession was that, after waiting until

3200-414: The same judge refused to admit the evidence of a person entrusted by both the parties to the cause to make and keep secret a bargain. He added that "[by him] a trustee should not be a witness in order to betray the trust ". But the last decision cannot be said to be in agreement with the law of evidence as generally laid down. In the case of Wilson v Rastall , as in some other cases, the indication of

3264-410: 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

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3328-502: The time and her confession. She served twenty years in a number of gaols, including Millbank Prison , and was released in 1885, at the age of 41. During her time in prison, Constance purportedly produced mosaics for a number of churches, including work for the crypt of St. Paul's cathedral . However, Noeline Kyle, in her book A Greater Guilt , discusses the work Constance was engaged in while incarcerated, including cooking, cleaning and laundry work, and what Kyle describes – in light of

3392-681: The time was twenty years. Saville-Kent was educated at King's College London , and then at the Royal School of Mines under T. H. Huxley . He held various jobs in Britain, including at the British Museum from 1866 to 1872. In 1869, he became a member of the Zoological Society of London and in 1873 of the Linnean Society . In 1870, Saville-Kent received a grant from

3456-477: Was Samuel's first wife. William was the youngest of ten children from his father's first marriage. Samuel was employed as a "Factory Commissioner" for the Home Office , and inspected factories to ensure that they were properly implementing the worker safety measures regulated in the Factory Acts of 1833 . As the acts sought to alleviate the harm done to children that were caused by unregulated working conditions in

3520-403: Was accepted, so that Wagner was not again called. The position that he 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 he could have any right as against the state to withhold evidence on the ground that he had put forward. The indignation seems to have been largely directed against

3584-532: 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 Bishop of Exeter , who wrote to him a letter strongly maintaining the privilege which had been claimed by 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

3648-403: Was asked a plain matter of fact and not to breach the seal of the confessional. The Catholic Encyclopedia suggests that this case supports the view that the confessional is privileged. The Catholic Encyclopedia reports the case Ruthven v De Bonn , tried before Mr. Justice Ridley and a jury in 1901. The defendant, a Catholic priest, having been asked a general question as to the nature of

3712-468: Was imprisoned for contempt of court for refusing to answer whether John Butler, 12th Baron Dunboyne , professed the Catholic faith at the time of his death. Statute would have nullified Lord Dunboyne's will had such been the case. Butler v Moore was an Irish case ( Ireland at the time formed part of the United Kingdom , but had a separate legal system). In 1823, in the case of R v Redford , which

3776-420: Was indeed false and merely an act to shield another person, it was for the benefit of not her father but her brother, William Saville-Kent , with whom she shared a very close sibling relationship, which was further deepened by her father turning his paternal attentions away from the children of his first marriage to the children he had with his second wife. William was indeed suspected during the investigations but

3840-430: Was never charged. Summerscale suggests that if William was not the culprit solely responsible for Francis's death, he was at least an accomplice to Constance. Constance never recanted her confession, even after her father's and her brother's deaths. She also kept her silence about the motive for the murder. In all of her statements, she emphasised and insisted that she bore no hatred nor jealousy toward her half-brother. As

3904-405: 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

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3968-405: Was responsible for the murder investigation of Saville-Kent's half-brother—had also suspected that William was an accomplice , as Constance and William shared a close sibling relationship. Constance had initially been detained and questioned, but was released as a result of her high social status. However, no charges were ever made against William. Constance was sentenced to life in prison, which at

4032-472: Was the death of his mother, Mary Ann Windus, who died suddenly in May 1852. This was followed a few years later by the murder of his half-brother, Francis Saville-Kent, which led to national media coverage and great family upheaval; then, came the subsequent conviction of his elder sister, Constance , as a result of her confessing to the murder five years later. The Scotland Yard detective Inspector Jack Whicher —who

4096-462: Was tried before William Draper Best, 1st Baron Wynford , Chief Justice of the Common Pleas on circuit, when a Church of England clergyman was about to give in evidence a confession of guilt made to him by the prisoner, the judge checked him and indignantly expressed his opinion that it was improper for a clergyman to reveal a confession. The case of R v Gilham (1828) 1 Mood CC 186, CCR, concerned

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