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Murphy Report: Can a failure to protect be prosecuted?

The following is a discussion of whether it is possible to prosecute those who failed to intervene in cases of child abuse in the Catholic Archdiocese of Dublin. The material was first published in the November Edition of Firstlaw's Criminal Law Online Service.

The Report of the Murphy Commission of Investigation into the Catholic Archdiocese of Dublin has understandably given rise to a huge level of public concern. The Report covers the period between 1975 and 2004 and essentially deals with two separate issues:

1. An examination of the handling of sexual abuse complaints in the Archdiocese itself;
2. Detailing the individual claims of abuse as against 46 individual Priests.

The nature of the individual incidents of abuse outlined in the Report is deeply shocking. Many of the incidents have themselves given rise to criminal prosecutions and convictions in respect of particular complainants. However, the publication of the Report quickly gave rise to calls, particularly from victims groups, for a criminal investigation in respect of those parts of the Report which appeared to outline an unwillingness on the part of the Church authorities and/or State institutions to investigate complaints and prosecute them. This part of the Report gives rise to some very interesting questions in relation to the applicability of the Criminal Law in terms of the relationship between the Church and individual priests against whom complaints were made, and also the relationship between the Church and outside organisations and in particular An Garda Síochána.
The hunger for prosecutions in respect of what has been described as a "cover up" is entirely understandable and in that regard the flames have been fanned to an extent by the immediate reaction of the Minister for Justice who was reported as saying

"No Government can guarantee that in the future there won't be evil people who will do evil things, but the era where evil people could do so under the cover of the cloth, facilitated and shielded from the consequences by their authorities, while the lives of children were ruined by such cruelty is over for good. The bottom line is this: - a collar will protect no criminal."

In so far as these remarks refer to individual perpetrators of abuse the remarks are uncontroversial; undoubtedly prosecutions for abusive activity have been brought and, having regard to the way in which ‘delay jurisprudence’ has developed in this jurisdiction, prosecutions may still be brought in the future notwithstanding the antiquity of any given allegation.
However, the remarks of the Minister, and those of victims’ group One in Four fed into a wider public desire to see senior church figures punished for failures in the management of complaints and the management of priests against whom complaints had been made. What many members of the public now seem to want to know is whether representatives of the Church itself, who abused no one, but who may have known of abuse can be prosecuted for their failures identified in the Report. It must be said that while putting the avoidance of scandal above the welfare of children was a shocking policy choice it is difficult to see in practical terms how criminal prosecutions would be sustainable in relation to that.
There has been much comment on the kinds of laws that may or may not have been breached and which could give rise to prosecution. Reckless endangerment of children has been mentioned in this context. However, this offence was created by the Criminal Justice Act 2006 and involves a situation where a person having authority or control over a child or abuser intentionally or recklessly endangers a child by causing or permitting that 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 fails to take reasonable steps to protect the child from such a risk while knowing that the child is in such a situation is guilty of an offence. While this would have undoubted applicability in circumstances where individuals known to have abused children were moved to other posts where access to children was unhindered, it is not an offence which has any retrospective application and in the context of the time period which the Murphy Commission was dealing is probably of little or no relevance.
There are nonetheless numerous options available to the DPP should he wish to pursue criminal prosecutions including the possibility of conspiracy, the common law offence of perverting the course of justice and the common law offence of misconduct in public office. It would however require some ingenuity to pursue a case for the first two offences. It is difficult to see how conspiracy in a strict legal sense (an agreement to do an unlawful act or a lawful act by an unlawful means) could be proven in relation to decisions to move priests from particular locations or in relation to the failure to pass on information in relation to allegations to relevant authorities. The Law in this area has always sought to distinguish between a coincidence of actions and agreement and does not seek to punish those combining coincidentally towards achieving shared goals.
The common law offence of perverting the course of public justice requires an act or course of conduct which has a tendency to, and is intended to, pervert the course of public justice. It does appear in general terms that a positive act is required and that inaction would be insufficient to constitute the offence. This offence could perhaps be made out where there was evidence to establish that the commission of an offence had been concealed and again is possibly made out where there is evidence to establish a conspiracy to obstruct An Garda Síochána. Putting the Police on a false trail might be a classic example of that.
It seems that a failure to prosecute itself could not constitute the offence of perverting the course of public justice unless one was able to establish that the failure to prosecute was itself as a result of a corrupt inducement or of a reward or some other benefit. This would seem to be a necessary follow on from the fact that the decision to prosecute is itself a discretionary one vested in either the Director of Public Prosecutions and/or An Garda Siochana depending on the nature of the offence alleged.
The option with the strongest chance of success is the common law offence of misconduct in a public office which was expanded in the English case of R. v. Dytham [1979] QB 722 to bring a prosecution against a police officer for failing to fulfil his obligations as an officer of justice to intervene in a savage beating that resulted in the death of one of the parties. The Lord Chief Justice in the Court of Appeal in Dytham made clear that the neglect of duty must be wilful and not merely inadvertent, and further that it must be culpable being without reasonable excuse or justification. The level of culpability had to be 'of such degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment.'

Dytham was approved obiter by Mr. Justice Carney in the case of DPP v. Bartley (13 June 1997, unreported), High Court. The accused in this case was convicted of incest. However Justice Carney took the opportunity provided by the case to note that if a member of the Gardaí receives a credible complaint of a felony they are obliged to investigate it. The complainant in this case had approached the Gardaí when she was 12 ½ years old to complain about her stepbrother’s inappropriate behaviour. Her complaint was not taken seriously and she endured a further 25 years of sexual abuse.

The offence of misconduct in public office could potentially be utilised beyond the Gardaí to pursue members of the Gardai who failed to act on information they received and potentially could be further expanded to prosecute Church officials who, by virtue of their position as heads of school boards, etc. held public office.

Despite the clear applicability of this offence, the prosecution of the substantive offences themselves has caused great difficulty for both complainants and accused having regard to the time frame of the activities complained of. It would seem unlikely that prosecutions in relation to institutional failures from that same time period would have a realistic prospect of success.