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Is covering up a serious crime an offence itself?

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  • 27-11-2009 1:20am
    #1
    gimme5minutes
    Registered Users Posts: 387 ✭✭


    Is covering up or failing to report a serious crime an offence in itself?


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    #2
    Thirdfox
    Registered Users Posts: 7,110 ✭✭✭Thirdfox


    Covering up yes. e.g. brother says to you "I've murdered someone" and you tell him how to hide the body.

    Failing to report no. e.g. you see someone getting raped and crying for help - legally there is no obligation for you to help or ring the gardai (unlike in France where you have a duty to act). Morally it's a different story.


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    #3
    Reloc8
    Closed Accounts Posts: 2,857 ✭✭✭Reloc8


    S. 7(1) Criminal Law Act deals with aiding, abetting, counselling or procuring the commission of an indictable offence and renders a person who does so liable to punishment as a principal offender.

    S. 7(2) says that if one person commits and indictable offence a person who, knowing or believing him to have done so, without reasonable excuse does any act with intent to impede his prosecution commits a specific offence. The maximum sentence for that is 10 years if the main offence is punishable by life, and 7 seven years if the main offence is punishable by up up to 14 years, and 5 years if the main offence is punishable by 10 years, and 3 years in any other case.

    S. 8 same act provides that a person who knows that an indictable or arrestable offence has been committed and has information that might be of material assistance to the prosecution of same, and accepts or agrees not to disclose the information (unless the reason for not doing is that any loss or injury has been 'made good') is guilty of an offence and can be punished by a prison term of up to 3 years on indictment or 12 months summarily.

    So no offence is committed under S. 8 unless you agree not to provide information to the prosecution, unless you do so because any loss or injury caused by the offence has been 'made good' (generally considered to relate only to crimes which cause financial loss only).

    So the answer is covering up a serious offence - yes this is an offence. Failing to report - yes, but only if you agreed not to do so and your agreement was not based on loss having been made good.


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    #4
    gimme5minutes
    Registered Users Posts: 387 ✭✭gimme5minutes


    So would you say that Cardinel Connel has committed an offence by not reporting paedophile priests and enabling them to commit further crimes by moving them to different juristictions in full knowledge that they had repeadedly abused children?


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    #5
    Reloc8
    Closed Accounts Posts: 2,857 ✭✭✭Reloc8


    I just told you what the law is - it doesn't matter what I would say.

    Any person with information concerning the commission of an offence however, or who is concerned that somebody might have committed an offence, should go straight to their local garda station where they will be happy to take the appropriate measures to ensure your time is not wasted.


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    #6
    TJM
    Registered Users Posts: 548 ✭✭✭TJM


    I'm surprised nobody seems to be familiar with the offence of withholding information contrary to s.9 of the Offences Against the State Amendment Act 1998:

    9.—(1) A person shall be guilty of an offence if he or she has information which he or she knows or believes might be of material assistance in—

    (a) preventing the commission by any other person of a serious offence, or

    (b) securing the apprehension, prosecution or conviction of any other person for a serious offence,

    and fails without reasonable excuse to disclose that information as soon as it is practicable to a member of the Garda Síochána.

    (2) A person guilty of an offence under this section shall be liable on conviction on indictment to a fine or imprisonment for a term not exceeding five years or both.

    (3) In this section "serious offence" has the same meaning as it has in section 8.
    Serious offence is defined in s.8 as follows:
    "serious offence" means an offence which satisfies both of the following conditions:

    (a) it is an offence for which a person of full age and capacity and not previously convicted may, under or by virtue of any enactment, be punished by imprisonment for a term of 5 years or by a more severe penalty, and

    (b) it is an offence that involves loss of human life, serious personal injury (other than injury that constitutes an offence of a sexual nature), false imprisonment or serious loss of or damage to property or a serious risk of any such loss, injury, imprisonment or damage,

    and includes an act or omission done or made outside the State that would be a serious offence if done or made in the State.
    This was introduced after the Omagh bombing - however, although intended to deal with terrorist offences it is substantially wider in effect. It is striking however that sexual offences are excluded from its scope - notwithstanding professed government intentions to introduce mandatory reporting. Note that the portion in italics gives a limited form of extraterritorial effect to this provision.


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    #7
    Thirdfox
    Registered Users Posts: 7,110 ✭✭✭Thirdfox


    ^ so a person who walks by an alley and hears someone screaming "assault causing serious bodily harm!" ;) but keeps on walking is committing a crime (if they happened to see the supposed assaulterer?)

    I suppose in practice it would be almost impossible to prosecute someone in those circumstances due to lack of evidence.


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    #8
    drkpower
    Registered Users Posts: 5,475 ✭✭✭drkpower


    TJM wrote: »
    I'm surprised nobody seems to be familiar with the offence of withholding information contrary to s.9 of the Offences Against the State Amendment Act 1998:

    "serious offence" means an offence which satisfies both of the following conditions:

    (a) it is an offence for which a person of full age and capacity and not previously convicted may, under or by virtue of any enactment, be punished by imprisonment for a term of 5 years or by a more severe penalty, and

    (b) it is an offence that involves loss of human life, serious personal injury (other than injury that constitutes an offence of a sexual nature), false imprisonment or serious loss of or damage to property or a serious risk of any such loss, injury, imprisonment or damage,

    and includes an act or omission done or made outside the State that would be a serious offence if done or made in the State.     .

    Very interesting; funny, I was never aware of this provision (although, in my defence, criminal law isnt my gig;)).

    For fear of sparking another abortion debate, doesnt this allow for the criminalisation of anyone who knows that someone has procured an abortion outside of the State....?:eek:

    Assuming that the term "human life" is intepreted to include a foetus?


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    #9
    gimme5minutes
    Registered Users Posts: 387 ✭✭gimme5minutes


    Surely he could be charged with perverting the course of justice for moving these known offenders around and facilitating them? I've also seen cases in the past, including one very recent one, where a person was charged with "acting with intent to impede the apprehension or prosecution of a person he knows to be guilty of an offence."

    http://www.independent.ie/national-news/courts/two-charged-with-mums-murder-1910883.html


    Also from here - http://www.legislationline.org/documents/action/popup/id/5142
    "(2) Where a person has committed an arrestable offence, any other person who, knowing or believing him or her to be guilty of the offence or of some other arrestable offence, does without reasonable excuse any act with intent to impede his or her apprehension or prosecution shall be guilty of an offence."

    Surely that can be applied to Cardinal Connell?


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    #10
    TJM
    Registered Users Posts: 548 ✭✭✭TJM


    Specifically in relation to past cover ups of child sexual abuse, it must be remembered that pre-1997 actions were criminalised (if at all) by the common law offence of misprision of a felony. It was quite difficult to secure a conviction for this offence. The Report by the Commission of Investigation into Catholic Archdiocese of Dublin has more on this point at p.90 of part 1:
    5.34 In May 2004, a detective garda forwarded an analytical overview of RTE‟s Prime Time and subsequent Liveline programmes to a detective superintendent in the NBCI. This report focused on the detail contained in the TV programmes. The author of the report concluded that the Prime Time programme left viewers with the impression that the Archdiocese had not properly dealt with complaints of child sexual abuse and that the Archdiocese had, in letting the priests return to ministry, facilitated further access by these priests to children and that some of them continued to abuse children. The analysis included an overview of the Liveline programmes on RTE radio and the calls that were made to the radio station following the Prime Time programme. Many of the callers identified the priests who, they said, had abused them.

    Misprision of felony investigation

    5.35 In addition to investigating the individual complaints, the investigating Gardaí were requested to consider the possibility of bringing a charge against any relevant people in the Archdiocese for the offence of "misprision of felony" arising out of the alleged abuse by the nine priests to whom reference was made in the Prime Time programme...

    5.38 There were some problems with the prospect of such a charge. In the first instance, relatively few of the complaints related to criminal charges that were classified as felonies at the time of the alleged commission of the offence. Furthermore, the distinction between felonies and misdemeanours had been abolished by section 3 of the Criminal Law Act 1997.

    5.39 In the event, no file was sent to the DPP recommending prosecution for this offence. The charge of misprision of felony was rare in occurrence and one that would have been unlikely to have been previously encountered to any significant degree by the investigating gardaí. There would have been some legal difficulties caused by the abolition of the distinction between felony and misdemeanour. No legal advice was sought on the matter. No recommendation to prosecute anyone within the Archdiocese was made, nor was any file submitted to the DPP recommending prosecution for this offence. Finally, as previously stated, the vast majority of complaints related to alleged offences that were misdemeanours rather than felonies. In all the circumstances, it is considered by the Commission that the misprision of felony investigations were carried out more for the sake of completeness than from any substantial belief that there would ever be such a prosecution.


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    #11
    metrovelvet
    Closed Accounts Posts: 9,376 ✭✭✭metrovelvet


    Then couldnt/shouldnt the guards be charged also?


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    #12
    Our man in Havana
    Closed Accounts Posts: 29,476 ✭✭✭✭Our man in Havana


    Malfeasance in public office.


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    #13
    TJM
    Registered Users Posts: 548 ✭✭✭TJM


    The Independent picked up on this issue in today's paper:
    Following RTE's 'Prime Time' programme 'Cardinal Secrets' in 2002, senior gardai conducted an inquiry into whether there was sufficient evidence to mount a case against any Church official for failure to report a serious crime. The offence is known as misprision of felony.

    But detectives in the 20-strong unit, dubbed 'the God Squad', concluded there was not -- and did not submit any file to the DPP recommending prosecution.

    "In all the circumstances, it is considered by the commission that the misprision of felony investigations were carried out more for the sake of completeness than from any substantial belief that there would ever be such a prosecution," said Judge Murphy.

    She acknowledged in her report that there were legal difficulties with potential criminal charges against clerics because the distinction between a felony and a misdemeanour (a less serious crime) had been abolished in 1997.

    Eleven years ago the Government introduced new anti-terror laws making it a crime to withhold information about a serious offence, but sexual offences were omitted from this law.

    Members of the hierarchy are also exempt from reckless endangerment of children laws, introduced three years ago, as the new offence cannot be applied retrospectively.

    Legal sources said one of the only options remaining for building a case against senior clerics was a common law charge of perverting or obstructing the course of justice.

    But they said any criminal charges would require new evidence, possibly drawn from the raft of fresh leads emerging from first-time complainants.


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    #14
    TJM
    Registered Users Posts: 548 ✭✭✭TJM


    For the sake of completeness, it might be worth pointing out that the exclusion of sexual offences from the 1998 Act was done deliberately with a view to leaving mandatory reporting of sexual offences to separate legislation. See the comments of then Minister for Justice John O'Donoghue in the Seanad:
    Mr. O'Donoghue: Under section 9 it is provided that:

    A person shall be guilty of an offence if he or she has information which he or she knows or believes might be of material assistance in—

    (a) preventing the commission by any other person of a serious offence, or

    (b) securing the apprehension, prosecution or conviction of any other person for a serious offence,

    and fails without reasonable excuse to disclose that information as soon as it is practicable to a member of the Garda Síochána.

    We tried to ensure this offence was drawn as tightly as possible and so defined a serious offence as being one to which a penalty of five years' imprisonment applies and which involves loss of human life, serious personal injury, false imprisonment and so on.

    964

    During consultations on the Bill, it was suggested to us by the Labour Party that the definition as it stood, through its reference to serious personal injury, might inadvertently introduce [964] mandatory reporting in certain sex abuse cases. The House will be aware that the question of mandatory reporting is a very complex one; the mandatory reporting of child abuse is one of the commitments contained in An Action Programme for the Millennium, one which the Taoiseach has stated will be fulfilled in the lifetime of this Government. To ensure the best possible legislation is enacted, the Government has given approval to the drafting of a White Paper on mandatory reporting. In this context, notices appeared in the national newspapers on 11 August 1998 seeking submissions from any interested parties, including members of the general public who may wish to give their views prior to the publication of the White Paper.

    It would clearly be inappropriate in the context of a Bill designed to address very specific threats to the State to pre-empt what is to be done in regard to mandatory reporting in sexual abuse cases. In the circumstances, the amendment made in the other House yesterday makes it clear that the reference to personal injury will exclude an injury which constitutes an offence of a sexual nature. The House will appreciate that making this exclusion is not intended to minimise the gravity of sexual abuse cases. It is simply intended to recognise that it would be grossly inappropriate for An Offences Against the State (Amendment) Bill, which is being introduced in a particular context as a matter of urgency to attempt, however inadvertently, to deal with the issue of mandatory reporting in such cases in one way or another. I am sure the House will appreciate the thinking behind the official amendment and the reasons for tabling it.


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    #15
    dermot_sheehan
    Closed Accounts Posts: 2,062 ✭✭✭dermot_sheehan


    http://www.boards.ie/vbulletin/showpost.php?p=53455454&postcount=6


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    #16
    TJM
    Registered Users Posts: 548 ✭✭✭TJM


    Pearse Mehigan has an opinion piece in today's Irish Times on this topic:
    The offence of misprision of felony was knowing a felony had been committed but concealing it from the authorities. However, the Criminal Law Act 1997 introduced a significant change. It abolished the distinction between a felony (murder, rape etc.) and a misdemeanour, a less serious offence. The 1997 Act created a new statutory offence under section 7 sub section (2) which provides “where a person has committed an arrestable offence, any other person who, knowing or believing him or her to be guilty of the offence or of some arrestable offence, does without reasonable excuse any act with intent to impede his or her apprehension or prosecution shall be guilty of an offence”.

    An “arrestable offence” is defined as an offence for which a person of full capacity and not previously convicted may under or by virtue of any enactment be punished by imprisonment for five years or by a more severe penalty and includes an attempt to commit any such offence.

    It follows that if the sexual abuse of a child is taken as an arrestable offence, anyone who impedes the prosecution of someone who has committed such an offence is themselves committing an offence. It is reasonable to conclude the failure to report such an offence to the authorities would constitute an act intended to impede a prosecution. The penalty is up to 10 years in jail.

    Furthermore, Section 176 of the Criminal Justice Act 2006 created the offence of reckless endangerment of children which more specifically provides under sub section (2) as follows:

    A person having authority or control over a child or abuser, who intentionally or recklessly endangers a child by: (a) causing or permitting any child to be placed or left in a situation which creates a substantial risk to the child of being a victim of serious harm or sexual abuse, or (b) failing to take reasonable steps to protect a child from such a risk while knowing that the child is in such a situation, is guilty of an offence.

    Accordingly, the law ensures there can be no hiding place for anyone who seeks to cover up or fails to report child sexual abuse. Dermot Ahern, on publishing the Murphy report, assured us the clerical collar would no longer afford the protection that it may have before.

    Abusers are being prosecuted on a regular basis but no one has to my knowledge been prosecuted under Section 7 of the Criminal Law Act 1997 for impeding the prosecution of someone guilty of such an offence. The Murphy report identifies many incidents where the prosecution of offenders was impeded by others. It is to be hoped the Assistant Garda Commissioner entrusted with looking into the Murphy report will do so with particular regard to the above legislation.
    I can't say I agree with his claim that s.7 of the 1997 Act creates a duty to report. That section clearly requires a positive act intended to impede. The relevant section of the 1997 Act would be s.8, which does create a concealment offence, but only where a person's silence is bought.


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