Precluded from testifying on confidential matters divulged in ‘loco confessionis’

The Court of Appeal (CA), composed of Mr Justice Giannino Caruana Demajo, Mr Justice Tonio Mallia and Mr Justice Anthony Ellul, on 26 November 2020, in the case ‘Wife (X) vs Husband (Y)’ held among other things that a priest was precluded from testifying on matters divulged to him in strict confidence, ‘in loco confessionis’ even if not under the seal of confession.

On 3 September 2018, X (wife) instituted legal proceedings before the Civil Court (Family Section): (a) to request the care and custody of their minor child; (b) to authorise her to take any decision regarding the child, without the intervention of her Y, (husband), and (c) to order that Y (husband) be deprived of his parental rights. She also requested an allowance for maintenance of their child from Y (husband) and that the children’s allowance and any other benefits be paid to her exclusively as well as any other adequate and appropriate measures in the best interests of their minor child.

In reply, Y (husband) disagreed that his wife should be awarded the exclusive care and custody of their child. It was not acceptable, he added, that only he should contribute to his expenses. He insisted on having access to the child and that he should be allowed to participate in decisions in the best interests of their minor child.

During the proceedings, Y (husband) objected to a priest (Father A) who had acted as their ‘marriage counsellor’ to be called as a witness. Y (husband) claimed that he confided in the priest, disclosing to him certain confidential information at a time when an attempt was made to rescue their marriage. He opened up to the priest, not under the seal of confession but on the basis of trust, and on the understanding that this information would not be used against him. Evidently Y (husband) could have admitted to priest (Father A) certain facts which could have been the cause of their marital problems.

On February 7, 2019, the Court gave its decree refusing the priest, (Father A), to be called as witness. The Court said:

“All information granted in this context is given on the basis of trust and an understood confidentiality that goes to the very core of the relationship between priest and the couple which relationship is more profound and intimate than that of a marriage counsellor or social worker. Therefore, in the absence of grave information which makes it legally incumbent on the witness to divulge such information, the Court believes that unless (Father A) is released by Y (husband) to give evidence in these proceedings, it should be unwise and improper for this Court to release the witness or authorize him to give evidence in these proceedings”.

The First Court based its decision that Y (husband) spoke to priest (Father A) in strict confidence, ‘in loco confessionis’.

X (wife) appealed from this decree, asking the Court to revoke the decree in the best interests of their minor child. She maintained that the priest was a competent witness. Allegedly he was precluded from testifying and was bound by secrecy, only in matters which he came to know in confession. Otherwise, and insofar as any information was not divulged to him under the seal of confession, he was free to give evidence – reference was made to Maria Dolores sive Doreen Polidano vs Carmel Polidano 1 December 2006 (Court of Appeal). She said that it was within the discretion of the court to order the priest to testify, even if the information was confidential. It was essential, she claimed, for the Court to know certain important information in relation to the parties before giving judgment in the best interests of the child.

Y (husband), on the other side, replied that the decree should be confirmed. Should the decree be reversed, he said, he reserved the right to initiate criminal action against the priest (Father A) on grounds of art. 257 of the Criminal Code, for unlawful disclosure of confidential information. It was a criminal offence under art. 257 Criminal Code : ‘ if any person who by reason of his calling, profession or office becomes the depositary of any secret confided in him, shall except when compelled by law to give information to a public authority, disclose such secret, he shall on conviction be liable to a fine not exceeding Euro 46,587.47 or to imprisonment for a term not exceeding two years or to both such fine and imprisonment…’ He referred to the distinction between ‘seal of confession’ and ‘loco confessionis’ made in art. 588 (1) of Chapter 12 of the Laws of Malta and claimed that whatever he told Father A was strictly confidential.

Art. 588 (1) provides: ‘No advocate or legal procurator without the consent of the client, and no clergyman without the consent of the person making the confession may be questioned on such circumstances as may have been stated by the client to the advocate or legal procurator in professional confidence in reference to the cause or as may have come to the knowledge of the clergyman under the seal of confession or loco confessionis.’

Reference was made to the Professional Secrecy Act, Chapter 377. The Court said that the list in article 3 of the Professional Secrecy Act which did not mention priests, was not exhaustive and other persons could be included to fall within the scope of art. 257 of the Criminal Code.

The Court noted that the parties agreed on the fact that anything revealed to Father A was not under the seal of confession. Our law mentioned the phrases ‘seal of confession’ and ‘loco confessionis’ (in Maltese sigriet talqrar or bħala qrar), which were not coterminous, pointed the court. Reference was made to Walter Mc Keon vs Charles Lyon decided by the First Hall on 11 June 1931.

This Court stated that the First Court was in the best position to decide this issue, and that it agreed with its reasons.

This Court also remarked that the acts in the mediation proceedings, which included Father A’s (priest’s) affidavit were annexed to these proceedings with the consent of both parties and that there was never any request to remove this affidavit from the acts of mediation.

For these reasons, on November 26, 2020, the Court dismissed X’s (wife’s) appeal. All judicial costs were at her expense. The Court Registrar was to ensure that the court file was remitted to the Court of First Instance to proceed with the hearing of the case.